EXHIBIT 10.7
EXECUTION COPY
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AMENDED AND RESTATED
RECEIVABLES LOAN AGREEMENT
by and among
TRW AUTOMOTIVE GLOBAL RECEIVABLES LLC
as Borrower
The Persons Parties hereto as
Conduit Lenders and Committed Lenders
CREDIT SUISSE FIRST BOSTON
JPMORGAN CHASE BANK, N.A.
THE BANK OF NOVA SCOTIA
SUNTRUST CAPITAL MARKETS, INC. and
DRESDNER BANK AG, NEW YORK BRANCH
as Funding Agents
and
JPMORGAN CHASE BANK, N.A.
as Administrative Agent
Dated as of December 31, 2004
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS........................................................................................... 1
SECTION 1.01 Certain Defined Terms..................................................................... 1
SECTION 1.02 Other Terms............................................................................... 34
SECTION 1.03 Amendment and Restatement................................................................. 35
ARTICLE II AMOUNTS AND TERMS OF THE LOANS....................................................................... 35
SECTION 2.01 The Loans................................................................................. 35
SECTION 2.02 Borrowing Procedures...................................................................... 36
SECTION 2.03 Use of Proceeds........................................................................... 38
SECTION 2.04 Interest and Fees......................................................................... 38
SECTION 2.05 Payment and Prepayment of Loans........................................................... 39
SECTION 2.06 Application of Collections Prior to Termination Date...................................... 39
SECTION 2.07 Application of Collections After Termination Date......................................... 41
SECTION 2.08 Deemed Collections; Application of Payments.............................................. 42
SECTION 2.09 Payments and Computations, Etc............................................................ 43
SECTION 2.10 Tranches.................................................................................. 44
SECTION 2.11 Breakage Costs............................................................................ 45
SECTION 2.12 Illegality................................................................................ 45
SECTION 2.13 Inability to Determine Eurodollar Rate.................................................... 45
SECTION 2.14 Indemnity for Reserves and Expenses....................................................... 46
SECTION 2.15 Indemnity for Taxes....................................................................... 47
SECTION 2.16 Security Interest......................................................................... 48
SECTION 2.17 [Reserved]................................................................................ 49
SECTION 2.18 [Reserved]................................................................................ 49
SECTION 2.19 Mitigation Obligations; Replacement of Lenders............................................ 49
ARTICLE III CONDITIONS OF BORROWINGS............................................................................ 50
SECTION 3.01 Conditions Precedent to Effective Date.................................................... 50
SECTION 3.02 Conditions Precedent to All Borrowings.................................................... 50
ARTICLE IV REPRESENTATIONS AND WARRANTIES....................................................................... 51
SECTION 4.01 Representations and Warranties of the Borrower............................................ 51
ARTICLE V COVENANTS............................................................................................. 55
SECTION 5.01 Covenants of the Borrower................................................................. 55
SECTION 5.02 Inspections; Annual Agreed Upon Procedures Audit......................................... 63
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ARTICLE VI ADMINISTRATION AND COLLECTION OF RECEIVABLES......................................................... 64
SECTION 6.01 Designation of Collection Agent........................................................... 64
SECTION 6.02 Certain Rights of the Administrative Agent................................................ 64
SECTION 6.03 Performance of Obligations................................................................ 66
ARTICLE VII TERMINATION EVENTS.................................................................................. 66
SECTION 7.01 Termination Events........................................................................ 66
SECTION 7.02 Acceleration of Maturity.................................................................. 68
ARTICLE VIII THE ADMINISTRATIVE AGENT........................................................................... 69
SECTION 8.01 Authorization and Action.................................................................. 69
SECTION 8.02 Agent's Reliance, Etc..................................................................... 69
SECTION 8.03 JPMorgan Chase and Affiliates............................................................. 69
SECTION 8.04 Indemnification of Administrative Agent................................................... 70
SECTION 8.05 Delegation of Duties...................................................................... 70
SECTION 8.06 Action or Inaction by Administrative Agent................................................ 70
SECTION 8.07 Notice of Termination Events; Action by Administrative Agent.............................. 70
SECTION 8.08 Non-Reliance on Administrative Agent and Other Parties.................................... 71
SECTION 8.09 Successor Administrative Agent............................................................ 71
SECTION 8.10 Consent to Agreed-Upon Procedures......................................................... 72
ARTICLE IX THE FUNDING AGENTS................................................................................... 72
SECTION 9.01 Authorization and Action.................................................................. 72
SECTION 9.02 Funding Agent's Reliance, Etc............................................................. 72
SECTION 9.03 Funding Agent and Affiliates.............................................................. 73
SECTION 9.04 Indemnification of Funding Agents......................................................... 73
SECTION 9.05 Delegation of Duties...................................................................... 73
SECTION 9.06 Action or Inaction by Funding Agent....................................................... 73
SECTION 9.07 Notice of Events of Termination........................................................... 74
SECTION 9.08 Non-Reliance on Funding Agent and Other Parties........................................... 74
SECTION 9.09 Successor Funding Agent................................................................... 75
SECTION 9.10 Reliance on Funding Agent................................................................. 75
ARTICLE X INDEMNIFICATION....................................................................................... 75
SECTION 10.01 Indemnities by the Borrower.............................................................. 75
ARTICLE XI MISCELLANEOUS........................................................................................ 77
SECTION 11.01 Amendments, Etc.......................................................................... 77
SECTION 11.02 Notices, Etc............................................................................. 78
SECTION 11.03 Assignability............................................................................ 79
SECTION 11.04 Costs and Expenses....................................................................... 83
SECTION 11.05 No Proceedings........................................................................... 83
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SECTION 11.06 Confidentiality.......................................................................... 83
SECTION 11.07 Further Assurances....................................................................... 85
SECTION 11.08 GOVERNING LAW............................................................................ 85
SECTION 11.09 Execution in Counterparts................................................................ 85
SECTION 11.10 Integration; Binding Effect; Survival of Termination..................................... 85
SECTION 11.11 Consent to Jurisdiction.................................................................. 86
SECTION 11.12 WAIVER OF JURY TRIAL..................................................................... 86
SECTION 11.13 Right of Setoff.......................................................................... 86
SECTION 11.14 Ratable Payments......................................................................... 87
SECTION 11.15 Limitation of Liability.................................................................. 87
SECTION 11.16 Limitation on the Addition and Termination of Originators................................ 88
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SCHEDULES AND EXHIBITS
SCHEDULE I Lender Groups
SCHEDULE II Special Concentration Limits
SCHEDULE III Credit and Collection Policy
SCHEDULE IV Condition Precedent Documents
SCHEDULE V Collection Accounts and Concentration Account
SCHEDULE VI Fiscal Months
SCHEDULE VII Originators
SCHEDULE VIII Litigation
EXHIBIT A Form of Assignment and Acceptance
EXHIBIT B Form of Borrowing Request
EXHIBIT C-1 Form of Control Agreement (Lock-Boxes)
EXHIBIT C-2 Form of Control Agreement (Concentration Account)
EXHIBIT D Form of Credit Default Swap
EXHIBIT E Agreed Upon Procedures
EXHIBIT F [Reserved]
EXHIBIT G Form of Note
EXHIBIT H Form of Joinder Agreement
EXHIBIT I Form of Prepayment Notice
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AMENDED AND RESTATED
RECEIVABLES LOAN AGREEMENT
Dated as of December 31, 2004
AMENDED AND RESTATED RECEIVABLES LOAN AGREEMENT (as amended,
supplemented or otherwise modified and in effect from time to time, this
"Agreement"), dated as of December 31, 2004, by and among (i) TRW AUTOMOTIVE
GLOBAL RECEIVABLES LLC, a Delaware limited liability company, as Borrower, (ii)
the Conduit Lenders from time to time parties hereto, (iii) the Committed
Lenders from time to time parties hereto, (iv) JPMORGAN CHASE BANK, N.A., CREDIT
SUISSE FIRST BOSTON, THE BANK OF NOVA SCOTIA, SUNTRUST CAPITAL MARKETS, INC. and
DRESDNER BANK AG, NEW YORK BRANCH, as Funding Agents and (v) JPMORGAN CHASE
BANK, N.A., as Administrative Agent.
PRELIMINARY STATEMENTS
A. The Transferor has purchased, and may from time to time hereafter
purchase, Receivables from the Originators pursuant to the Originator Purchase
Agreement.
B. Pursuant to the Transfer Agreement, the Borrower has purchased, and
shall from time to time hereafter purchase, from the Transferor all Receivables
sold to the Transferor under the Originator Purchase Agreement.
C. To fund its purchases under the Transfer Agreement, the
Borrower may from time to time request Loans from the Lenders on the terms and
conditions of this Agreement.
D. The Conduit Lenders may, in their sole discretion, make Loans so
requested from time to time, and if a Conduit Lender in any Lender Group elects
not to make any such Loan, the Committed Lenders in such Lender Group have
agreed that they shall make such Loan, in each case subject to the terms and
conditions of this Agreement.
E. The Borrower, the Lenders, the Funding Agents and the Administrative
Agent are parties to a Receivable Loan Agreement dated as of February 27, 2003
(as amended prior to the date hereof, the "Existing Loan Agreement").
F. On the terms and conditions set forth herein, the parties hereto
have agreed to amend and restate the Existing Loan Agreement in its entirety.
Accordingly, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Accountants' Letter" has the meaning specified in Section 5.02(b).
"Adjusted Eurodollar Rate" means, for any Tranche Period, an
interest rate per annum obtained by dividing (i) the Eurodollar Rate for such
Tranche Period by (ii) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage for such Tranche Period.
"Administrative Agent" means JPMorgan Chase, in its capacity as
contractual representative for the Conduit Lenders and Committed Lenders
hereunder, and any successor thereto in such capacity appointed pursuant to
Article VIII.
"Administrative Agent Fee Letter" has the meaning specified in
Section 2.04(c).
"Adverse Claim" means a lien, security interest or other charge or
encumbrance, or other right or claim in, of or on any asset or property of a
Person in favor of another Person.
"Affiliate" means, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"Agents" means, collectively, the Administrative Agent and each
Funding Agent.
"Aggregate Commitment" means, at any time, the sum of the
Commitments then in effect. The initial Aggregate Commitment as of the Amendment
Effective Date shall be equal to $408,000,000 as set forth on Schedule I.
"Aggregate Principal Balance" means the aggregate outstanding
Principal Balance of the Loans hereunder.
"Agreement" has the meaning specified in the preamble hereto.
"Alternate Rate" for any Tranche during any Tranche Period means an
interest rate per annum equal to the sum of the Applicable Eurodollar Rate
Margin plus the Adjusted Eurodollar Rate for such Tranche Period; provided,
however, that in case of:
(i) any Tranche Period with respect to which the Adjusted
Eurodollar Rate is not available pursuant to Section 2.12 or 2.13,
(ii) any Tranche Period of less than one month,
(iii) any Tranche Period as to which the applicable Funding
Agent does not receive notice, by no later than 1:00 P.M. (New York
City time) on the third Business Day preceding the first day of such
Tranche Period, that the related Tranche will not be funded by a
Conduit Lender through the issuance of Commercial Paper, or
(iv) any Tranche Period for a Tranche the Principal Balance of
which is less than $1,000,000 for any Lender Group,
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the Alternate Rate for such Tranche Period shall be an interest rate per annum
equal to the Base Rate in effect from time to time during such Tranche Period.
"Amendment Effective Date" has the meaning specified in Section
1.03.
"Applicable ABR Margin" has the meaning specified in the Lender Fee
Letter.
"Applicable Eurodollar Rate Margin" has the meaning specified in the
Lender Fee Letter.
"Asset Purchase Agreement" means, in the case of any Lender Group, a
secondary market agreement, asset purchase agreement or other liquidity
agreement entered into by the Committed Lenders in such Lender Group or any of
their respective Affiliates for the benefit of one or more Conduit Lenders in
such Lender Group, to the extent relating to the sale or transfer of interests
in, or other financing of, Loans.
"Assignment and Acceptance" means an assignment and acceptance
agreement entered into by a Committed Lender, an Eligible Assignee and such
Committed Lender's Funding Agent, pursuant to which such Eligible Assignee may
become a party to this Agreement, in substantially the form of Exhibit A hereto.
"Base Rate" means, with respect to any Tranche, a fluctuating
interest rate per annum as shall be in effect from time to time, which
rate shall at all times be equal to the sum of (a) the Applicable ABR
Margin plus (b) the higher of: (A) the rate of interest announced publicly
by JPMorgan Chase in New York, New York, from time to time as JPMorgan
Chase's prime or base rate (such rate not necessarily being the lowest or
best rate charged by JPMorgan Chase); and (B) the Federal Funds Rate plus
0.50%.
"Base Rate Tranche" has the meaning specified in Section 2.12.
"Borrower" means TRW Automotive Global Receivables LLC, a Delaware
limited liability company, and any successor thereto.
"Borrower Obligations" means all present and future indebtedness and
other liabilities and obligations (howsoever created, arising or evidenced,
whether direct or indirect, absolute or contingent, or due or to become due) of
the Borrower to the Secured Parties arising under or in connection with this
Agreement or any other Transaction Document or the transactions contemplated
hereby or thereby, and shall include, without limitation, the aggregate
Principal Balance of the Loans, Interest, Fees, Credit Default Swap Obligations,
and all other amounts due or to become due from the Borrower under the
Transaction Documents (whether in respect of fees, expenses, indemnifications,
breakage costs, increased costs or otherwise), including, without limitation,
interest, fees and other obligations that accrue after the commencement of any
bankruptcy, insolvency or similar proceeding with respect to any Transaction
Party (in each case whether or not allowed as a claim in such proceeding).
"Borrowing" has the meaning specified in Section 2.01(a).
"Borrowing Date" has the meaning specified in Section 2.02(a)(i).
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"Borrowing Request" has the meaning specified in Section 2.02(a)(i).
"Business Day" means any day on which (i) banks are not authorized
or required to close in New York City, New York, (ii) so long as the Collection
Agent is TRW Automotive U.S. LLC or an Affiliate thereof, the Collection Agent
is open for business in Livonia, Michigan and (iii) if this definition of
"Business Day" is utilized in connection with the determination of the
Eurodollar Rate or any notice related thereto, dealings are carried out in the
London interbank market.
"Calculation Period" means each period from and including the first
day of a fiscal month specified on Schedule VI to and including the last day of
such fiscal month (whether such fiscal month occurs before or after the Closing
Date).
"Capitalized Lease Obligation" of any Person means the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for purposes hereof, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in accordance with GAAP.
"Carrying Cost Reserve" means, on any date, an amount equal to
(NRB x CCRR)
where:
NRB = the Net Receivables Balance at the close of business of the
Collection Agent on such date.
CCRR = the Carrying Cost Reserve Ratio on such date.
"Carrying Cost Reserve Ratio" means, on any Monthly Reporting Date
and continuing until (but not including) the next Monthly Reporting Date, an
amount, expressed as a percentage, equal to (a) the product of (i) 2 times Days
Sales Outstanding for such earlier Monthly Reporting Date and (ii) the Base Rate
in effect for Dollars as of such day, divided by (b) 365 (or 366, as
applicable).
"Change in Law" means (a) the adoption of any Law after the date of
this Agreement, (b) any change in Law or in the interpretation or application
thereof by any Official Body after the date of this Agreement or (c) compliance
by any Indemnified Party (or, for purposes of Section 2.14(b), by any lending
office of such Indemnified Party or by such Indemnified Party's holding company,
if any) with any request, guideline or directive (whether or not having the
force of law) of any Official Body made or issued after the date of this
Agreement.
"Change of Control" means the occurrence of any of the following:
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(a) at any time, (i) Holdings shall fail to own directly,
beneficially and of record, 100% of the issued and outstanding Equity Interests
of Intermediate Holdings (or the surviving entity in any merger of Intermediate
Holdings and the Parent Guarantor pursuant to Section 6.05(b) of the Senior
Credit Agreement), unless and until such time as Intermediate Holdings (or such
surviving entity) is merged with Holdings pursuant to Section 6.05(b) of the
Senior Credit Agreement, (ii) Intermediate Holdings (or the surviving entity in
any merger of Intermediate Holdings and Holdings pursuant to Section 6.05(b) of
the Senior Credit Agreement) shall fail to own directly, beneficially and of
record, 100% of the issued and outstanding Equity Interests of the Parent
Guarantor, unless and until such time as Intermediate Holdings (or such
surviving entity) is merged with the Parent Guarantor pursuant to Section
6.05(b) of the Senior Credit Agreement, (iii) a majority of the seats (other
than vacant seats) on the board of directors of Holdings shall at any time be
occupied by persons who were neither (A) nominated by the board of directors of
Holdings or a Permitted Holder nor (B) appointed by directors so nominated or
(iv) a "Change in Control" shall occur under (and as defined in) the Senior
Notes Indentures or the Senior Subordinated Note Indentures;
(b) any person or group (within the meaning of Rule 13d-5 of the
Securities Exchange Act of 1934 as in effect on the date hereof), other than the
Permitted Holders or any combination of the Permitted Holders, shall own
beneficially, directly or indirectly, in the aggregate Equity Interests
representing at least 35% of the aggregate ordinary voting power represented by
the issued and outstanding Equity Interests of Holdings and the Permitted
Holders own beneficially, directly or indirectly, a smaller percentage of such
ordinary voting power at such time than the Equity Interests owned by such other
person or group;
(c) the Parent Guarantor shall cease to own, directly or indirectly,
100% of the outstanding Equity Interests in each of the Borrower and the
Transferor; or
(d) any Originator or the Collection Agent shall cease to be a
wholly-owned direct or indirect Subsidiary of the Parent Guarantor unless, in
the case of an Originator, in the judgment of each Funding Agent, the failure of
such Originator to be a wholly-owned direct or indirect Subsidiary of the Parent
Guarantor would not materially and adversely affect the collectibility of any
material portion of the Receivables or the performance of such Originator's
obligations under the Transaction Documents.
"Closing Date" means February 28, 2003.
"Collateral" has the meaning specified in Section 2.16.
"Collateral Account" has the meaning specified in Section 2.8 of the
Servicing Agreement.
"Collateral Account Bank" means any bank at which a Collateral
Account is maintained.
"Collateral Agreement" has the meaning specified in Section 2.16(c).
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"Collection Account" means an account maintained at an Eligible
Account Bank or a post office box administered by an Eligible Account Bank
(other than the Concentration Account or the Collateral Account), in each case
for the purpose of receiving Collections.
"Collection Account Bank" means any bank at which a Collection
Account is maintained.
"Collection Agent" means at any time the Person then authorized
pursuant to Section 2.1 of the Servicing Agreement to administer and collect
Receivables.
"Collection Agent Default" has the meaning specified in Section 2.9
of the Servicing Agreement.
"Collection Agent Parties" means, collectively, the Collection Agent
and the Sub-Collection Agents.
"Collections" means, collectively (without duplication), (i) all
cash collections and other cash Proceeds of the Pool Receivables, including,
without limitation, all cash Proceeds of Related Security with respect to any
such Receivable, any Deemed Collections of such Receivables and any payments
made by any Originator with respect to such Receivables (including any payments
made with respect to a Diluted Receivable or in connection with the repurchase
of a Receivable pursuant to the terms of the Originator Purchase Agreement),
(ii) all cash collections and other cash Proceeds of the Credit Default Swaps,
including, without limitation, all cash Proceeds of any collateral securing the
obligations of the counterparty thereunder and (iii) all other cash collections
and other cash Proceeds of the Collateral.
"Commercial Paper" means commercial paper, money market notes and
other promissory notes and senior indebtedness issued by a Conduit Lender.
"Commitment" of any Committed Lender means the Dollar amount set
forth on Schedule I hereto opposite such Committed Lender's name or, in the case
of a Committed Lender that became a party to this Agreement pursuant to an
Assignment and Acceptance, the amount set forth therein as such Committed
Lender's Commitment, in each case as such amount may be (i) reduced or increased
by any Assignment and Acceptance entered into by such Committed Lender in
accordance with the terms hereof and (ii) reduced pursuant to Section 2.01(c).
"Committed Lenders" means, collectively, the Persons identified as
"Committed Lenders" on Schedule I and their respective successors and permitted
assigns.
"Concentration Account" has the meaning specified in Section 2.7 of
the Servicing Agreement.
"Concentration Account Bank" means, at any time, any Eligible
Account Bank at which the Concentration Account is maintained at such time.
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"Concentration Factor" means, as of any date of determination, (x)
with respect to any Obligor that is a Special Obligor, the Special Concentration
Factor for such Special Obligor and (y) with respect to any other Obligor, a
percentage equal to the following:
(a) if such Obligor has (i) a short-term debt rating of at least A-1
by S&P or, if no short-term debt rating from S&P is available, a Debt Rating of
at least A by S&P and (ii) a short-term debt rating of P-1 by Moody's or, if no
short-term debt rating from ▇▇▇▇▇'▇ is available, a Debt Rating of at least A2
by Moody's, 20.0%;
(b) if such Obligor is not qualified under clause (a) above, but has
(i) a short-term debt rating of at least A-2 by S&P or, if no short-term debt
rating from S&P is available, a Debt Rating of at least BBB+ by S&P and (ii) a
short-term debt rating of at least P-2 by Moody's or, if no short-term debt
rating from ▇▇▇▇▇'▇ is available, a Debt Rating of at least Baa1 by Moody's,
20.0%;
(c) if such Obligor is not qualified under clauses (a) or (b) above,
but such Obligor has (i) a short-term debt rating of at least A-3 by S&P or, if
no short-term debt rating from S&P is available, a Debt Rating of at least BBB-
by S&P and (ii) a short-term debt rating of at least P-3 by Moody's or, if no
short-term debt rating from ▇▇▇▇▇'▇ is available, a Debt Rating of at least Baa3
by Moody's, 12.5%; and
(d) in all other cases, 5.0%.
In the event the ratings of any Obligor from S&P and Moody's fall
within different ratings levels, the Concentration Factor for such Obligor shall
be determined based upon the lower of the two ratings.
"Concentration Limit" for any Obligor at any time means:
(i) in the case of a Special Obligor, the product of the Special
Concentration Factor for such Obligor and its Affiliates multiplied by the
aggregate Outstanding Balance of the Eligible Receivables or, if less, the
maximum Concentration Limit for such Obligor specified on Schedule II (as such
Schedule amended from time to time as described in the definition of "Special
Obligor"); and
(ii) in the case of any other Obligor, the product of the
Concentration Factor for such Obligor and its Affiliates multiplied by the
aggregate Outstanding Balance of the Eligible Receivables.
"Conduit Assignee" means, with respect to any assignment by a
Conduit Lender, any Person that (i) issues commercial paper, money market notes,
promissory notes or other senior indebtedness rated at least A-1 by S&P and P-1
by Moody's, (ii) is managed or administered by the Funding Agent or the Program
Manager with respect to such assigning Conduit Lender or any Affiliate of such
Funding Agent or Program Manager or an Eligible Assignee or any Affiliate
thereof and (iii) is designated by such Funding Agent or Program Manager to
accept an assignment from such Conduit Lender of such Conduit Lender's rights
and obligations pursuant to Section 11.03(b).
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"Conduit Borrower" means an entity which is designated as a Conduit
Borrower on Schedule I hereto, which entity will fund its Loans hereunder by
borrowing from a specified financing conduit.
"Conduit Lender Termination Date" means, with respect to any Conduit
Lender, the date on which the Funding Agent for such Conduit Lender notifies the
Administrative Agent and the Borrower that no further Loans shall be made by
such Conduit Lender hereunder.
"Conduit Lenders" means, collectively, the Persons identified as
"Conduit Lenders" on Schedule I and their respective successors and permitted
assigns; provided, however, that when used in reference to any such Person that
is also a Conduit Borrower, the term "Conduit Lender" shall be deemed to refer
collectively to such Conduit Borrower and its related financing conduit.
"Conduit Lending Limit" of any Conduit Lender means the Dollar
amount set forth on Schedule I hereto opposite such Conduit Lender's name, as
such amount may be reduced or increased pursuant to Section 2.01(c) or Section
11.03(b). The aggregate Conduit Lending Limits as of the Amendment Effective
Date shall be equal to $400,000,000, as set forth on Schedule I.
"Contract" means an agreement (including, without limitation, an
agreement evidenced by a purchase order, invoice or similar document), pursuant
to or under which an Obligor shall be obligated to pay for goods or merchandise
purchased from an Originator or services rendered by an Originator.
"Control" means the possession, directly or indirectly, of the power
to (i) direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities, by contract or otherwise or
(ii) solely when used in reference to an Obligor, vote 25% or more of the
securities having ordinary voting power for the election of directors (or the
equivalent) of such Person, and "Controlling" and "Controlled" have meanings
correlative thereto.
"Control Agreement" means (i) with respect to a Collection Account,
an agreement among an Originator, the Collection Agent, the Borrower, the
Administrative Agent and the applicable Collection Account Bank in substantially
the form of Exhibit C-1 to this Agreement or in the form specified in the
Originator Purchase Agreement (or such other form as the Administrative Agent
shall approve) and (ii) with respect to the Concentration Account, an agreement
among the Collection Agent, the Borrower, the Administrative Agent and the
Concentration Account Bank in substantially the form of Exhibit C-2 to this
Agreement (or in such other form as the Administrative Agent shall approve).
"CP Rate" means, for any Tranche Period for any Tranche, and for any
Conduit Lender, to the extent such Lender funds such Tranche by issuing
Commercial Paper, the per annum rate equivalent to the weighted average cost (as
determined by the related Funding Agent, and which shall include (without
duplication) the fees and commissions of placement agents and dealers,
incremental carrying costs incurred with respect to Commercial Paper maturing on
dates other than those on which corresponding funds are received by such Conduit
Lender, other
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borrowings by such Conduit Lender and any other costs associated with the
issuance of Commercial Paper) of or related to the issuance of Commercial Paper
that are allocated, in whole or in part, by such Conduit Lender or its related
Funding Agent to fund or maintain such Tranche (and which may also be allocated
in part to the funding of other assets of the Conduit Lender); provided,
however, that if any component of any such rate is a discount rate, in
calculating the "CP Rate" for such Tranche for such Tranche Period, the related
Funding Agent shall for such component use the rate resulting from converting
such discount rate to an interest bearing equivalent rate per annum.
"Credit and Collection Policy" means those receivables credit and
collection policies and practices of the Originators in effect on the date of
this Agreement and described in Schedule III hereto, as modified in compliance
with this Agreement.
"Credit Default Premium Reserve Account" has the meaning specified
in the Transfer Agreement.
"Credit Default Swap" means a credit default swap transaction
entered into by the Transferor (and pledged to the Borrower in accordance with
the Transfer Agreement), pursuant to which the Transferor obtains credit
protection on an Obligor for the purpose of increasing the Concentration Limit
for such Obligor; provided that (i) at the time such transaction is entered
into, the Hedge Counterparty thereunder is an Eligible Counterparty, (ii) the
Transferor shall have no payment obligations under such transaction other than
the payment of up-front and periodic premiums to the Eligible Counterparty (and
either (A) all premiums payable during the next six months of such Credit
Default Swap shall have been duly paid in full in advance or (B) the amount of
such premiums shall have been deposited into the Credit Default Premium Reserve
Account in accordance with the Transfer Agreement), (iii) the "Credit Events"
under such transaction shall include "Bankruptcy" and "Failure to Pay", (iv)
such transaction shall provide for "Cash Settlement" in Dollars only and (v) the
documentation governing such credit default swap transaction shall be
substantially in the form attached as Exhibit D (or in such other form as the
Required Committed Lenders (and, solely in the case of Credit Default Swaps
entered into on the Closing Date, each Funding Agent) may approve in their
reasonable discretion; provided that if the only material differences between
the documentation set forth in Exhibit D and the documentation proposed to be
used for such credit default swap transaction arise out of changes to the
standard form credit default swap documentation published by the International
Swap and Derivatives Association, Inc. (or any successor thereto), then the
Transferor may use such proposed documentation without the consent of any party
other than the Administrative Agent.
"Credit Default Swap Obligation" means any amount payable by the
Transferor to a Hedge Counterparty under a Credit Default Swap.
"Daily Report" means a report furnished by the Collection Agent
pursuant to Section 2.3(c) of the Servicing Agreement in substantially the form
attached as Exhibit A-3 to the Servicing Agreement.
"Days Sales Outstanding" means, on any Monthly Reporting Date and
continuing until (but not including) the next Monthly Reporting Date, the number
of calendar days equal to
9
the product of (a) 91 and (b) the amount obtained by dividing (i) the aggregate
Outstanding Balance of Receivables as of the last day of the immediately
preceding Calculation Period by (ii) the aggregate amount of sales giving rise
to Receivables during the three (3) consecutive Calculation Periods immediately
preceding such Monthly Reporting Date.
"Debt Rating" for any Person at any time means the then-current
rating by S&P or ▇▇▇▇▇'▇ of such Person's long-term public senior unsecured or,
in the case of the Parent Guarantor, senior secured non-credit-enhanced debt.
"Deemed Collections" means any Collections on any Receivable deemed
to have been received by the Transferor pursuant to the Transfer Agreement or by
the Borrower pursuant to Sections 2.08(c) and (d).
"Default Ratio" means the ratio (expressed as a percentage) computed
as of each Monthly Reporting Date for the immediately preceding Calculation
Period by dividing (i) the sum (without duplication) of the aggregate
Outstanding Balance of all Receivables which were 91-120 days past their
original due date as at the end of such Calculation Period plus the Outstanding
Balance of all Receivables which became Defaulted Receivables during such
Calculation Period by (ii) the aggregate amount of sales giving rise to
Receivables during the fourth Calculation Period immediately prior to such
Calculation Period. To the extent adequate data for Calculation Periods prior to
December 2002 are not available for any Originator to determine the aggregate
Outstanding Balance of Receivables which were 91-120 days past their original
due date as at the end of such Calculation Period, the Collection Agent may use
for such calculation the aggregate Outstanding Balance of Receivables originated
by such Originator which were 61-90 days past due or , if adequate data is also
not available for Receivables that were 61-90 days past due, then the Collection
Agent may use for such calculation the aggregate Outstanding Balance of
Receivables originated by such Originator which were 31-60 days past due as at
the end of such Calculation Period.
"Defaulted Receivable" means a Receivable: (i) which remains unpaid
for 91 or more days from the original due date for such Receivable; (ii) as to
which an Event of Bankruptcy has occurred and is continuing with respect to the
Obligor thereof; (iii) which has been identified by the Borrower, any
Originator, the Transferor or the Collection Agent as uncollectible; or (iv)
which, in accordance with the applicable Credit and Collection Policy, has been
or should be written off as uncollectible.
"Defaulting Lender" means any Committed Lender with respect to which
a Lender Default is in effect.
"Delinquency Ratio" means the ratio (expressed as a percentage)
computed as of each Monthly Reporting Date for the immediately preceding
Calculation Period by dividing (i) the aggregate Outstanding Balance of all
Receivables which remain unpaid more than 60 days from their original due date
as of the end of such Calculation Period by (ii) the aggregate Outstanding
Balance of all Receivables as of the end of such Calculation Period.
"Delinquent Receivable" means a Receivable which remains unpaid
between 61 and 90 days from the original due date.
10
"Designated Obligor" means any Obligor designated as such by the
Borrower with the prior written consent of the Required Committed Lenders.
"Diluted Receivable" means that portion (and only that portion) of
any Receivable which is either (a) reduced or canceled as a result of (i) any
defective, rejected or returned goods, merchandise or services or any failure by
any Transaction Party to deliver any merchandise or goods or provide any
services or otherwise to perform under any related Contract, order or invoice,
(ii) any change in the terms of, or cancellation of, a Contract or invoice or
any rebate, administrative fee, discount, credit memo, refund, non-cash payment,
chargeback, allowance or any billing or other adjustment by any Transaction
Party (except (x) any such change or cancellation in accordance with the Credit
and Collection Policy resulting from the financial inability of the Obligor to
pay such Receivable or (y) after the Retro Pricing Approval Date, any Retro
Pricing Adjustment) or (iii) any set-off by an Obligor in respect of any claim
by such Obligor (whether such claim arises out of the same or a related
transaction or an unrelated transaction), or (b) subject to any specific
counterclaim or defense whatsoever (except the discharge in bankruptcy of the
Obligor thereof).
"Dilution Adjustment" means, collectively, the adjustments,
cancellations and reductions described in the definition of "Diluted
Receivable."
"Dilution Horizon Ratio" means, as of any Monthly Reporting Date and
continuing until (but not including) the next Monthly Reporting Date, a ratio
computed by dividing (i) the sum of all sales which gave rise to Receivables
during the two Calculation Periods immediately preceding such earlier Monthly
Reporting Date by (ii) the Net Receivables Balance as of the end of the
Calculation Period immediately preceding such earlier Monthly Reporting Date.
"Dilution Ratio" means the ratio (expressed as a percentage)
computed as of each Monthly Reporting Date for the immediately preceding
Calculation Period (the "current Calculation Period") by dividing (i) the
aggregate amount of Receivables which became Diluted Receivables during the
current Calculation Period, by (ii) the aggregate amount of all sales giving
rise to Receivables during the second Calculation Period immediately preceding
the current Calculation Period.
"Dilution Reserve Floor" means, as of any Monthly Reporting Date,
and continuing until (but not including) the next Monthly Reporting Date, the
greater of (i) 5.0% and (ii) an amount (expressed as a percentage) that is
calculated as follows:
DRF = AD x DHR
where:
DRF = Dilution Reserve Floor;
AD = the "Average Dilution", defined as the twelve-month
rolling average of the Dilution Ratios that occurred
during the period of twelve consecutive Calculation
Periods ending immediately prior to such earlier Monthly
Reporting Date; and
11
DHR = the Dilution Horizon Ratio.
"Dilution Reserve Ratio" means, as of any Monthly Reporting Date,
and continuing until (but not including) the next Monthly Reporting Date, an
amount (expressed as a percentage) that is calculated as follows:
DRR = DHR x [(SF x AD) + [(DS-AD) x (DS/AD)]]
where:
DRR = Dilution Reserve Ratio;
DHR = the Dilution Horizon Ratio;
SF = the Stress Factor;
AD = the "Average Dilution", defined as the twelve-month
rolling average of the Dilution Ratios that occurred
during the period of twelve consecutive Calculation
Periods ending immediately prior to such earlier Monthly
Reporting Date; and
DS = the "Dilution Spike", defined as the highest two-month
rolling average Dilution Ratio that occurred during the
period of twelve consecutive Calculation Periods ending
immediately prior to such earlier Monthly Reporting
Date.
"Dollars" and "$" each mean the lawful currency of the United States
of America.
"Eligible Account Bank" means (a) with respect to accounts in the
United States, a depositary institution or trust company (which may include the
Administrative Agent and its Affiliates) organized under the laws of the United
States of America or any one of the States thereof or the District of Columbia;
provided, however, that at all times (i) such depositary institution or trust
company is a member of the Federal Deposit Insurance Corporation, (ii) the
unsecured and uncollateralized debt obligations of such depositary institution
or trust company are rated at least A-1 by S&P and P-1 by ▇▇▇▇▇'▇ and (iii) such
depositary institution or trust company has a combined capital and surplus of at
least $100,000,000 and (b) with respect to accounts outside the United States,
an entity authorized to accept deposits in the relevant jurisdiction which has
unsecured and uncollateralized debt obligations rated at least A-1 by S&P and
P-1 by ▇▇▇▇▇'▇ and has a combined capital and surplus of at least $100,000,000.
"Eligible Assignee" means (i) any Person that is a Funding Agent, a
Lender, a Program Support Provider or an Affiliate thereof, (ii) any Person
managed by a Funding Agent, a Program Manager, a Lender or an Affiliate thereof
and rated at least A-1 by S&P and P-1 by ▇▇▇▇▇'▇ and (iii) any other Person that
has been approved by the Funding Agent for such Lender Group and, so long as no
Termination Event has occurred and is continuing, that has been approved by the
Borrower and the Parent Guarantor (such approval by the Borrower and the Parent
Guarantor not to be unreasonably withheld or delayed); provided that, without
the prior written consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) no assignment may be made by a Lender in one
Lender Group to a Lender in another
12
Lender Group (the "Assignee Lender Group") if, after giving effect thereto,
either (x) the aggregate outstanding principal balance of the Loans held by the
members of the Assignee Lender Group would exceed 26.67% of the Aggregate
Principal Balance or (y) the aggregate Commitments of the Committed Lenders in
the Assignee Lender Group would exceed 26.67% of the Aggregate Commitment.
"Eligible Counterparty" means any financial institution that (i) has
short-term debt ratings of A-1 or better by S&P and P-1 by ▇▇▇▇▇'▇, (ii) has its
obligations unconditionally guaranteed by a Person whose short-term debt ratings
are A-1 or better by S&P and P-1 by ▇▇▇▇▇'▇ pursuant to a guaranty in form and
substance satisfactory to the Administrative Agent or (iii) has otherwise been
approved by the Administrative Agent and the Required Committed Lenders (acting
in their sole discretion and subject to such terms and conditions, including
with respect to collateral, as the Administrative Agent and the Required
Committed Lenders may specify).
"Eligible Obligor" means any Obligor (i) that is a resident of the
United States, (ii) that is not an Official Body or an Affiliate of any
Transaction Party, (iii) that is not the subject of an Event of Bankruptcy, (iv)
that is not a Designated Obligor and (v) with respect to which not more than 25%
of the aggregate Outstanding Balance of the Receivables owing by such Obligor
are more than 60 days past their original due date.
"Eligible Receivable" means, at any time, any Receivable:
(a) which has been originated by an Originator and sold by such
Originator to the Transferor pursuant to (and in accordance with) the
Originator Purchase Agreement and by the Transferor to the Borrower
pursuant to the Transfer Agreement, with the result that the Borrower has
good title thereto, free and clear of all Adverse Claims (other than
"Permitted Adverse Claims" of the type described in clauses (i) and (ii)
of the definition of such term);
(b) the Obligor of which is an Eligible Obligor;
(c) which has been billed and, according to the Contract related
thereto, is required to be paid in full within 120 days of the original
billing date therefor;
(d) which is denominated and payable only in Dollars in the United
States;
(e) which is not a Delinquent Receivable or Defaulted Receivable at
such time;
(f) which (i) arises pursuant to a Contract with respect to which
the applicable Originator has performed all obligations required to be
performed by it thereunder in order to have such Receivables become due
and payable thereunder, including, without limitation, shipment of the
goods or merchandise and/or the performance of the services purchased
thereunder and (ii) does not arise from a consignment sale;
(g) which (i) if purchased with proceeds of Commercial Paper, would
constitute a "current transaction" within the meaning of Section 3(a)(3)
of the Securities
13
Act of 1933, as amended, (ii) is an "eligible asset" as defined in Rule 3a-7
under the Investment Company Act of 1940, as amended, and (iii) represents all
or part of the sales price of merchandise, insurance or services within the
meaning of Section 3(c)(5) of the Investment Company Act of 1940, as amended;
(h) which (i) (A) is an "account" within the meaning of Section 9-102 of
the UCC of the State of Delaware or (B) a "payment intangible" within the
meaning of Section 9-102 of such UCC and (ii) is not evidenced or otherwise
payable by chattel paper, a promissory note, a ▇▇▇▇ of exchange or other
instrument (other than a check);
(i) which arises under a Contract that, together with such Receivable, is
in full force and effect and constitutes the legal, valid and binding obligation
of the related Obligor, enforceable against such Obligor in accordance with its
terms and is not subject to any litigation, dispute, offset, counterclaim or
other defense other than unexpired volume or pricing discounts or rebates to
which the Obligor thereon may be entitled; provided that only such portion of
such Receivable subject to any such dispute, offset, counterclaim or defense
shall be deemed ineligible under this criterion;
(j) which, together with the Contract related thereto, does not contravene
in any material respect any Laws applicable thereto (including, without
limitation, Laws relating to truth in lending, fair credit billing, fair credit
reporting, equal credit opportunity, fair debt collection practices and
privacy);
(k) which satisfies in all material respects all requirements of the
applicable Credit and Collection Policy;
(l) which was originated in the ordinary course of the applicable
Originator's business;
(m) the Obligor of which has been directed to make all payments to a
Collection Account with respect to which there is a Control Agreement in effect;
(n) which has not been compromised, adjusted or modified for credit
reasons (including by the extension of time for payment or the granting of any
discounts, allowances or credits);
(o) (i) the assignment of which under the Originator Purchase Agreement to
the Transferor, (ii) the assignment of which by the Transferor to the Borrower
under the Transfer Agreement and (iii) the grant of a security interest therein
under this Agreement by the Borrower to the Administrative Agent does not (in
each case of clauses (i) through (iii)) violate, conflict with or contravene any
applicable Laws or any contractual or other restriction, limitation or
encumbrance and does not require the consent of or notice to the applicable
Obligor or any other Person (other than such consents as have been obtained and
notices that have been given);
(p) which has not been re-invoiced and has not otherwise had its invoice
date or due date changed on the books and records of any Transaction Party;
14
(q) all of the Borrower's right, title and interest in which
(together with the Collections and Related Security related thereto) is
subject to a first priority security interest therein perfected under
Delaware law, in favor of the Administrative Agent, on behalf of the
Conduit Lenders and the Committed Lenders, free and clear of all Adverse
Claims other than "Permitted Adverse Claims" of the type described in
clauses (i) and (ii) of the definition of such term;
(r) which is not an obligation to pay for (i) tooling or equipment
purchased or built by an Originator for the purpose of manufacturing
products for an Obligor or (ii) services rendered in connection with
building tooling for the purposes of manufacturing products for an
Obligor; and
(s) the Originator Purchase Agreement under which such Receivable
was sold to the Transferor remains in full force and effect, and the
Originator of such Receivable has not been terminated as a "Seller"
thereunder.
"Equity Interests" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participation or other
equivalents of or interests in (however designated) equity of such Person,
including any preferred stock, any limited or general partnership interest and
any limited liability company membership interest.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with Holdings, Intermediate Holdings, TRW
Automotive or a Subsidiary thereof is treated as a single employer under Section
414(b) or (c) of the IRC, or, solely for purposes of Section 302 of ERISA and
Section 412 of the IRC, is treated as a single employer under Section 414 of the
IRC.
"ERISA Event" means (a) any Reportable Event; (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the IRC or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the IRC or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by Holdings, Intermediate Holdings, the Parent
Guarantor, a Subsidiary of any of them or any ERISA Affiliate of any of them of
any liability under Title IV of ERISA with respect to the termination of any
Plan; (e) the receipt by Holdings, Intermediate Holdings, the Parent Guarantor,
a Subsidiary of any of them or any ERISA Affiliate of any of them from the PBGC
or a plan administrator of any notice relating to an intention to terminate any
Plan or to appoint a trustee to administer any Plan under Section 4042 of ERISA;
(f) the incurrence by Holdings, Intermediate Holdings, the Parent Guarantor, a
Subsidiary of any of them or any ERISA Affiliate of any of them of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by Holdings, Intermediate Holdings, the
Parent Guarantor, a Subsidiary of any of them or any ERISA Affiliate of any of
them of any notice, or the receipt by any Multiemployer Plan from Holdings,
Intermediate Holdings, the Parent Guarantor, any such Subsidiary or any such
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a
15
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Rate" means, for any Tranche for any Tranche Period, the
rate determined by the Administrative Agent by reference to the British Bankers'
Association Interest Settlement Rates for deposits in Dollars appearing on the
applicable page of the Telerate Service (or any successor to or substitute for
such service, providing rate quotations comparable to those currently provided
by such service, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to deposits in
Dollars in the London interbank market) at approximately 11:00 a.m., London
time, on the second Business Day prior to the first day of such Tranche Period,
as the rate for deposits with a maturity comparable to such Tranche Period. In
the event that such rate is not available at such time for any reason, then the
"Eurodollar Rate" shall be the rate at which deposits of $5,000,000 and for a
maturity comparable to such Tranche Period are offered by the principal London
office of JPMorgan Chase in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, on the second Business Day
prior to the first day of such Tranche Period.
"Eurodollar Rate Reserve Percentage" means, for any Tranche Period
in respect of which Interest is computed by reference to the Eurodollar Rate,
the reserve percentage applicable two Business Days before the first day of such
Tranche Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) (or if more than one
such percentage shall be applicable, the daily average of such percentages for
those days in such Tranche Period during which any such percentage shall be so
applicable) for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement)
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurocurrency Liabilities is
determined) having a term equal to such Tranche Period.
"Eurodollar Tranche" has the meaning specified in Section 2.12.
"Event of Bankruptcy" means, with respect to any Person, that:
(i) such Person (a) shall generally not pay its debts as such debts
become due or (b) shall admit in writing its inability to pay its debts
generally or (c) shall make a general assignment for the benefit of
creditors;
(ii) any proceeding shall be instituted by or against such Person
seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee or other
similar
16
official for it or any substantial part of its property, and, if
instituted against such Person, shall remain undischarged for a period of
60 days; or
(iii) such Person shall take any corporate or similar action to
authorize any of the actions set forth in the preceding clauses (i) or
(ii).
"Excess Longer-Term Receivable Amount" means, as of any date of
determination, an amount equal to the excess, if any, of (i) the aggregate
Outstanding Balance of all Eligible Receivables required to be paid in full
within more than 90 days but less than 121 days of the original billing date
therefor over (ii) an amount equal to 5% of the aggregate Outstanding Balance of
Eligible Receivables as of such date.
"Excluded Taxes" means, with respect to any Agent, any Lender or any
other recipient of any payment to be made by or on account of any Borrower
Obligation, (a) income or franchise taxes imposed on (or measured by) its net
income by the United States of America, or by the jurisdiction under the laws of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction described in clause (a) above
and (c) in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Borrower under Section 2.19(b)), any withholding tax that is in
effect and would apply to amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party to this Agreement (or designates a new
lending office) or is attributable to such Foreign Lender's failure to comply
with Section 2.15(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to any withholding tax pursuant to Section 2.15(a).
"Existing Loan Agreement" has the meaning specified in the
Preliminary Statements.
"Facility Limit" shall mean, at any time, the sum of the Conduit
Lending Limits then in effect; provided, that (i) the Facility Limit may not at
any time exceed the Aggregate Commitment then in effect divided by 1.02, and
(ii) from and after the Termination Date, the Facility Limit shall at all times
equal the Aggregate Principal Balance.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it
"Fee Letters" means, collectively, the Administrative Agent Fee
Letter and the Lender Fee Letter.
"Fees" has the meaning specified in Section 2.04(c).
17
"Final Payout Date" means the date after the Termination Date on
which the Borrower Obligations have been reduced to zero by payment in full in
cash.
"Finance Charges" means, with respect to a Receivable, any finance,
interest, late or similar charges owing by an Obligor in respect of such
Receivable pursuant to the applicable Contract.
"Financial Covenant Default" means a default in the due observance
or performance of any covenant, condition or agreement set forth in any of
Sections 6.11 or 6.12 of the Senior Credit Agreement as in effect on the date
hereof and without giving effect to any amendment, waiver, supplement,
termination or other modification to the Senior Credit Agreement made after the
date hereof, except that if any of Sections 6.11 or 6.12 of the Senior Credit
Agreement is amended or waived prior to the termination of the Senior Credit
Agreement, then references herein to such Sections shall give effect to such
amendment or waiver.
"Financial Officer" of any Person means the chief financial officer,
principal accounting officer, treasurer, assistant treasurer or controller of
such Person.
"Foreign Lender" shall mean any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Fund" means Blackstone Capital Partners IV Merchant Banking Fund
L.P., a Delaware limited partnership.
"Fund Affiliate" means (i) each Affiliate of the Fund that is
neither an operating company nor a company controlled by an operating company
and (ii) each general partner of the Fund or any Fund Affiliate who is a partner
or employee of the Blackstone Group L.P.
"Funding Agent" means, with respect to any Lender Group, the Person
identified as the "Funding Agent" for such Lender Group on Schedule I, together
with any successor thereto designated pursuant to Article IX and any Person that
becomes a Funding Agent for a new Lender Group pursuant to Section 11.03(i).
"Funding Agent's Account" means, with respect to any Funding Agent,
the account of such Funding Agent identified on Schedule I, or such other
account as such Funding Agent may designate in writing to the Borrower, the
Collection Agent and the Administrative Agent.
"GAAP" means generally accepted accounting principles as in effect
in the United States of America from time to time, consistently applied.
"Guarantee" of or by any Person (the "guarantor") means (a) any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of)
18
such Indebtedness or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep well, to purchase assets, goods, securities
or services, to take-or-pay or otherwise) or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such
Indebtedness or other obligation, (ii) to purchase or lease property, securities
or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, (iv) under an agreement entered into for the purpose of assuring in
any other manner the holders of such Indebtedness or other obligation of the
payment thereof or to protect such holders against loss in respect thereof (in
whole or in part) or (v) as an account party in respect of any letter of credit
or letter of guaranty issued to support such Indebtedness or other obligation,
or (b) any Adverse Claim on any assets of the guarantor securing any
Indebtedness (or any existing right, contingent or otherwise, of the holder of
Indebtedness to be secured by such an Adverse Claim) of any other Person,
whether or not such Indebtedness or other obligation is assumed by the
guarantor; provided, however, that the term "Guarantee" shall not include
endorsements for collection or deposit, in either case in the ordinary course of
business, or customary and reasonable indemnity obligations in effect on the
Closing Date or entered into in connection with any acquisition or disposition
of assets permitted under the Senior Credit Agreement.
"Hedge Counterparty" means any Person that enters into a Credit
Default Swap with the Transferor.
"Holdings" means TRW Automotive Holdings Corp., a Delaware
corporation, and any successor thereto.
"Incipient Termination Event" means an event that but for notice or
lapse of time or both would constitute a Termination Event.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid, (d)
all obligations of such Person under conditional sale or other title retention
agreements relating to property or assets purchased by such Person, (e) all
obligations of such Person issued or assumed as the deferred purchase price of
property or services (other than current trade liabilities and current
intercompany liabilities (but not any refinancings, extensions, renewals or
replacements thereof) incurred in the ordinary course of business and maturing
within 365 days after the incurrence thereof), (f) all Guarantees by such Person
of Indebtedness of others, (g) all Capitalized Lease Obligations of such Person,
(h) all payments that such Person would have to make in the event of an early
termination, on the date Indebtedness of such Person is being determined, in
respect of outstanding Swap Agreements, (i) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit
and (j) all obligations of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any partnership in
which such Person is a general partner, other than to the extent that the
instrument or agreement evidencing such Indebtedness expressly limits the
liability of such Person in respect thereof.
19
"Indemnified Amounts" has the meaning specified in Section 10.01.
"Indemnified Party" has the meaning specified in Section 10.01.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Information Memorandum" means the Confidential Information
Memorandum dated January 2003 and relating to the transactions contemplated by
the Transaction Documents, as modified or supplemented prior to the Closing
Date.
"Intercompany Note" means the "Intercompany Note" under (and as
defined in) the Originator Purchase Agreement.
"Intercreditor Agreement" means the Intercreditor Agreement dated as
of the Closing Date between the Administrative Agent and JPMorgan Chase, as
collateral agent under the Senior Credit Agreement, as such agreement may be
amended, restated, supplemented or otherwise modified from time to time.
"Interest" means, for any Tranche and any Tranche Period, the sum
for each day during such Tranche Period of the following:
IR x PB + LF
------
Y
where:
IR = the Interest Rate for such Tranche for such day
PB = the Principal Balance of such Tranche on such day
Y = (a) in the case of a Tranche, the Interest Rate for which is
based on the Base Rate, 365 or 366 as applicable and (b) in
the case of any other Tranche, 360
LF = the Liquidation Fee, if any, for such Tranche for such
Tranche Period
provided that no provision of this Agreement shall require the payment or permit
the collection of Interest in excess of the maximum permitted by applicable law;
and provided further that Interest for any Tranche shall not be considered paid
by any distribution to the extent that at any time all or a portion of such
distribution is rescinded or must otherwise be returned for any reason.
"Interest Rate" means, with respect to any Tranche for any day (i)
to the extent such Tranche is funded on such day by a Conduit Lender through the
issuance of Commercial Paper, the CP Rate and (ii) otherwise, the Alternate
Rate; provided that at all times following the occurrence and during the
continuation of a Termination Event the Interest Rate for all Tranches shall be
an interest rate per annum equal to the Base Rate in effect from time to time
plus 2%.
20
"Intermediate Holdings" means TRW Automotive Intermediate Holdings
Corp., a Delaware corporation, and any successor thereto.
"Involuntary Bankruptcy Event" means the occurrence of an event
that, but for notice or lapse of time or both, would constitute such a
Termination Event of the type described in Section 7.01(e).
"IRC" means the Internal Revenue Code of 1986, as amended from time
to time, and any successor statute.
"Joinder Agreement" means an agreement substantially in the form of
Exhibit H pursuant to which a new Lender Group is established hereunder pursuant
to Section 11.03(i).
"JPMorgan Chase" means JPMorgan Chase Bank, N.A., in its individual
capacity, and its successors.
"Law" means any law (including common law), constitution, statute,
treaty, regulation, rule, ordinance, order, injunction, writ, decree or award of
any Official Body.
"Lender Default" means (i) the refusal (which has not been
retracted) of a Committed Lender to make available its portion of any Borrowing
or (ii) a Committed Lender having notified in writing the Borrower that it does
not intend to comply with its obligations to make available its portion of any
Borrowings hereunder, in either case, provided that all conditions to such
funding obligation have been satisfied.
"Lender Fee Letter" has the meaning specified in Section 2.04(c).
"Lender Group" means a group consisting of one or more Conduit
Lenders, one or more Committed Lenders and a Funding Agent for such Lenders, as
specified on Schedule I or in the Joinder Agreement pursuant to which such
Lender Group is established pursuant to Section 11.03(i).
"Lender Group Limit" means, with respect to any Lender Group, the
aggregate Conduit Lending Limit(s) of the Conduit Lender(s) in such Lender
Group.
"Lender Group Percentage" means, for any Lender Group, the
percentage equivalent of a fraction (expressed out to five decimal places), the
numerator of which is the aggregate Commitments of all Committed Lenders in such
Lender Group and the denominator of which is the Aggregate Commitment.
"Lenders" means, collectively, the Committed Lenders and the Conduit
Lenders.
"Liquidation Fee" means for (i) any Tranche Period held by a Conduit
Lender for which Interest is computed by reference to the CP Rate and a
reduction of the Principal Balance of the relevant Tranche is made for any
reason or (ii) any Tranche Period for which Interest is computed by reference to
the Eurodollar Rate and a reduction of the Principal Balance of the relevant
Tranche is made for any reason on any day other than the last day of such
Tranche Period, the amount, if any, by which (A) the additional Interest
(calculated without taking into
21
account any Liquidation Fee or any shortened duration of such Tranche Period
pursuant to clause (iii) of the definition thereof) which would have accrued
during such Tranche Period (or, in the case of clause (i) above, during the
period until the maturity of the underlying commercial paper tranches) on the
reductions of Principal Balance of the Tranche relating to such Tranche Period
had such reductions not occurred, exceeds (B) the income, if any, received by
the Conduit Lender or the Committed Lender which holds such Tranche from the
investment of the proceeds of such reductions of Principal Balance. A
certificate as to the amount of any Liquidation Fee (including the computation
of such amount) shall be submitted by the affected Conduit Lender or Committed
Lender to the Borrower and shall be conclusive and binding for all purposes,
absent manifest error.
"Loan" means a loan made to the Borrower pursuant to Article II.
"Loss and Dilution Reserve" means, on any date, an amount equal to:
LDRR x NRB
where: LDRR = the Loss and Dilution Reserve Ratio on such date.
NRB = the Net Receivables Balance at the close of business of the
Collection Agent on such date.
"Loss and Dilution Reserve Ratio" means, on any day, the sum of:
(a) the greater of the Loss Reserve Floor and the Loss Reserve
Ratio ; plus
(b) the greater of the Dilution Reserve Floor and the Dilution
Reserve Ratio.
"Loss Horizon Ratio" means, as of any Monthly Reporting Date and
continuing until (but not including) the next Monthly Reporting Date, the amount
obtained by dividing (i) the sum of all sales which gave rise to Receivables
during the three Calculation Periods immediately preceding such earlier Monthly
Reporting Date plus 0.25 times the sum of all sales which gave rise to
Receivables during the fourth Calculation Period immediately preceding such
earlier Monthly Reporting Date by (ii) the Net Receivables Balance as of the end
of the Calculation Period immediately preceding such earlier Monthly Reporting
Date.
"Loss Reserve Floor" means a percentage equal to 25%.
"Loss Reserve Ratio" means, as of any Monthly Reporting Date and
continuing until (but not including) the next Monthly Reporting Date, an amount
(expressed as a percentage) that is calculated as follows:
LRR = SF x DR x LHR x PTF
where:
LRR = Loss Reserve Ratio;
22
SF = the Stress Factor;
DR = the highest three-month rolling average Default Ratio that occurred
during the period of twelve consecutive Calculation Periods immediately
preceding such earlier Monthly Reporting Date;
LHR = the Loss Horizon Ratio; and
PTF = the Payment Terms Factor.
"Management Group" shall mean the group consisting of the directors,
executive officers and other management personnel of TRW Automotive, Holdings
and Intermediate Holdings on the Closing Date together with (1) any new
directors whose election by such boards of directors or whose nomination for
election by the stockholders of TRW Automotive, Holdings, or Intermediate
Holdings, as applicable, was approved by a vote of a majority of the directors
of TRW Automotive, Holdings or Intermediate Holdings, as applicable, then still
in office who were either directors on the Closing Date or whose election or
nomination was previously so approved and (2) executive officers and other
management personnel of TRW Automotive, Holdings or Intermediate Holdings, as
applicable, hired at a time when the directors on the Closing Date together with
the directors so approved constituted a majority of the directors of TRW
Automotive, Holdings or Intermediate Holdings, as applicable.
"Material Adverse Effect" means a material adverse effect on (i) the
ability of any Transaction Party to perform its obligations under any
Transaction Document, (ii) the legality, validity or enforceability of this
Agreement or any other Transaction Document, (iii) the Borrower's or any Secured
Party's interest in the Receivables generally or in any material portion of the
Receivables, the Related Security or the Collections with respect thereto, (iv)
the collectibility of the Receivables generally or of any material portion of
the Receivables or (v) the business, operations, properties, assets or financial
condition of (A) the Parent Guarantor and its Subsidiaries, taken as a whole,
(B) the Transferor or (C) the Borrower.
"Material Indebtedness" means Indebtedness (other than the Loans) of
any one or more of the Transaction Parties in an aggregate principal amount
exceeding $40,000,000.
"Maturity Date" means the earlier of (i) first Settlement Date that
occurs 6 months after the Termination Date and (ii) the date on which the Loans
become due and payable pursuant to Section 7.02.
"Maximum Percentage Factor" means 100%.
"Monthly Report" means a report in substantially the form of, and
containing the information described in, Exhibit A-1 to the Servicing Agreement,
and such additional information as any Funding Agent may reasonably request from
time to time, duly completed and furnished by the Collection Agent to each
Funding Agent pursuant to Section 2.3(a) of the Servicing Agreement.
"Monthly Reporting Date" means the tenth Business Day immediately
succeeding each Calculation Period, or if that day is not a Business Day, the
next following Business Day.
23
"Monthly Settlement Date" means the first Weekly Settlement Date to
occur in each calendar month.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which any Transaction Party or any ERISA
Affiliate (other than one considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of IRC Section 414) is making or accruing an obligation to
make contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"Net Receivables Balance" means at any time an amount equal to (i)
the aggregate Outstanding Balance of Pool Receivables that qualify as Eligible
Receivables at such time minus (ii) the aggregate amount by which the
Outstanding Balance of Eligible Receivables of each Obligor (treating each
Obligor and its Affiliates as if they were a single Obligor), in each case
reduced by the Retro Pricing Accruals related to such Obligor, exceeds the
Concentration Limit for such Obligor minus (iii) the Excess Longer-Term
Receivable Amount minus (iv) unapplied cash Collections of the Receivables minus
(v) the aggregate amount of all Retro Pricing Accruals.
"Note" has the meaning specified in Section 2.01(b).
"Notional Amount" means with respect to any Special Obligor for
which a Credit Default Swap has been entered into, the notional amount of such
Credit Default Swap (which shall be equal to zero at all times on and after the
termination of such Credit Default Swap).
"Obligor" means a Person obligated to make payments pursuant to a
Contract.
"Offering Memorandum" shall mean the Offering Memorandum, dated
February 6, 2003, in respect of the "Senior Notes" and the "Senior Subordinated
Notes" (as defined in the Senior Credit Agreement).
"Official Body" shall mean any government or political subdivision
or any agency, authority, bureau, central bank, commission, department or
instrumentality of any such government or political subdivision, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
"Originator Purchase Agreement" means the Receivables Purchase
Agreement dated as of the Closing Date between the Transferor and the
Originators, as amended, restated, supplemented or otherwise modified from time
to time in accordance with the terms hereof and thereof.
"Originators" means, collectively, the Persons identified on
Schedule VII under the heading "Originators," and any other Persons that may
from time to time hereafter become "Sellers" under the Originator Purchase
Agreement in accordance with the terms thereof.
"Other Companies" means, collectively, the Originators, the Parent
Guarantor and all of their respective Subsidiaries and Affiliates except the
Borrower and the Transferor.
24
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, any Transaction Document.
"Outstanding Balance" means, with respect to any Receivable at any
time, the then outstanding principal amount thereof, excluding any Finance
Charges related thereto.
"Parent Guarantor" means TRW Automotive, and any successor thereto.
"Participant" has the meaning specified in Section 11.03(f).
"Payment Terms Factor" means (i) for the period from the Closing
Date until (but not including) the fourth Monthly Reporting Date thereafter 1.11
and (ii) for each three-month period to occur thereafter from and including a
Monthly Reporting Date to but excluding the third Monthly Reporting Date
thereafter, a fraction, the numerator of which is the sum of (x) the weighted
average payment terms (based upon the Outstanding Balance of the Receivables and
expressed as a number of days to their respective due dates) for the Receivables
generated by the Originators during the Calculation Period immediately preceding
such earlier Monthly Reporting Date and (y) 60, and the denominator of which is
90.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"Percentage Factor" means the fraction (expressed as a percentage)
computed on any date of determination as follows:
APB + TR
--------
NRB
where:
APB = the Aggregate Principal Balance on the date
of such computation; provided that, solely
for purposes of computing the Percentage
Factor, the Aggregate Principal Balance on
any day shall be deemed to be reduced by an
amount equal to the aggregate amount of funds
then held in the Collateral Account which are
then available to be withdrawn.
TR = Total Reserves on the date of such computation.
NRB = the Net Receivables Balance on the date of such computation.
"Performance Guarantor" means, collectively, the Parent Guarantor
and the Originators from time to time parties to the Performance Guaranty as
"Performance Guarantors" thereunder.
"Performance Guaranty" means that certain Amended and Restated
Performance Guaranty dated as of the Amendment Effective Date among the
Performance Guarantors, the
25
Borrower, the Transferor and the Administrative Agent (for the benefit of the
Secured Parties), as amended, restated, supplemented or otherwise modified from
time to time in accordance with the terms hereof and thereof.
"Permitted Adverse Claims" means (i) Adverse Claims created under
this Agreement or the Originator Purchase Agreement, (ii) liens for taxes,
assessments or other governmental charges or levies not yet due and payable or
the validity of which are being contested by a Transaction Party in good faith
by appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of such Transaction Party, (iii) Adverse
Claims with respect to Pool Receivables which are not, and have never been,
treated as Eligible Receivables so long as the aggregate amount of liabilities
secured by such Adverse Claims does not exceed $1,000,000 (excluding any Adverse
Claims which are released or otherwise terminated within 30 days of the date on
which a Responsible Officer of any Transaction Party obtains actual knowledge
thereof) and (iv) Adverse Claims arising under the Security Documents (as
defined in the Senior Credit Agreement) that do not relate to any Purchased
Receivables Property (as defined in the Intercreditor Agreement) except, with
respect to Records (as defined in the Intercreditor Agreement), to the extent
provided therein.
"Permitted Holder" means the Fund, the Fund Affiliates and the
Management Group.
"Permitted Investments" means, with respect to the Collateral
Account and any Collections received by the Borrower pursuant to Section
2.06(h), any of the following investments denominated and payable in Dollars:
(a) readily marketable debt securities issued by, or the full and timely payment
of which is guaranteed by the full faith and credit of, the federal government
of the United States of America, (b) insured demand deposits, time deposits and
certificates of deposit of any Eligible Account Bank that is organized under the
laws of the United States of America, (c) repurchase obligations with a term of
not more than 30 days for underlying securities of the types described in clause
(a) above entered into with a bank meeting the qualifications described in
clause (b) above, (d) no load money market funds rated in the highest ratings
category by each of Moody's and S&P (which rating, in the case of S&P, shall be
AAAm or AAAmg and shall not have the "r" symbol attached to such rating), (e)
commercial paper of any corporation incorporated under the laws of the United
States of America, provided that such commercial paper is rated at least A-1
(and without any "r" symbol attached to any such rating) by S&P and at least
Prime-1 by Moody's, and (f) cash and cash escrow agreements.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the IRC and in respect of which any Transaction Party or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
26
"Pool Receivable" means any Receivable which has been acquired by
the Transferor from an Originator pursuant to the Originator Purchase Agreement
and sold by the Transferor to the Borrower pursuant to the Transfer Agreement.
"Portfolio Report" means any Monthly Report, Weekly Report or Daily
Report.
"Principal Balance" means, with respect to any Tranche, the original
principal amount of any Loan made hereunder that has been allocated to such
Tranche pursuant to Section 2.10, as such amount may be divided or combined in
accordance with such Section, in each case as reduced from time to time by
Collections received by the applicable Lender(s) holding such Tranche from
distributions made pursuant to Section 2.06 or Section 2.07, as applicable, on
account of the Principal Balance of such Tranche; provided that if such
Principal Balance shall have been reduced by any distribution and thereafter all
or a portion of such distribution is rescinded or must otherwise be returned for
any reason, such Principal Balance shall be increased by the amount of such
rescinded or returned distribution, as though it had not been received by such
Lender(s).
"Proceeds" means "proceeds" as defined in Section 9-102 of the UCC
as in effect on the date hereof in the State of New York.
"Program Manager" means, with respect to a Conduit Lender, the
Person (if any) identified on Schedule I as the "Program Manager" for such
Conduit Lender, and the successors and permitted assigns of such Person.
"Program Support Agreement" means and includes any agreement entered
into by any Program Support Provider providing for the issuance of one or more
letters of credit for the account of a Conduit Lender, the issuance of one or
more surety bonds for which such Conduit Lender is obligated to reimburse the
applicable Program Support Provider for any drawings thereunder, the sale by
such Conduit Lender to any Program Support Provider of the Loans funded by such
Conduit Lender (or portions thereof or participations therein) and/or the making
of loans and/or other extensions of credit in connection with such Conduit
Lender's commercial paper program, together with any letter of credit, surety
bond, swap or other instrument issued thereunder.
"Program Support Provider" means, with respect to any Conduit
Lender, each Committed Lender with respect to such Conduit Lender and any other
Person now or hereafter extending credit, or having a commitment to extend
credit to or for the account of, or to make purchases from, such Conduit Lender
or issuing a letter of credit, surety bond, swap or other instrument to support
any obligations arising under or in connection with such Conduit Lender's
securitization program.
"Pro Rata Share" means, for any Committed Lender in any Lender
Group, (a) the Commitment of such Committed Lender divided by the sum of the
Commitments of all Committed Lenders in such Lender Group and (b) after the
Commitments of all the Committed Lenders in such Lender Group have been
terminated, the outstanding principal amount of the Loans funded by such
Committed Lender divided by the outstanding principal amount of the Loans funded
by all the Committed Lenders in such Lender Group.
27
"Rate Type" means the Adjusted Eurodollar Rate, the Base Rate or the
CP Rate.
"Rating Agencies" shall mean on any date of determination the rating
agencies then rating Commercial Paper at the request of any Conduit Lender.
"Receivable" means the indebtedness and other obligations of any
Obligor resulting from the provision or sale of merchandise, goods or services
by an Originator, including, without limitation, the right to payment of any
interest or finance charges, late payment charges, delinquency charges,
extension or collection fees and all other obligations of such Obligor with
respect thereto; provided that the term "Receivable" shall not include any such
indebtedness or obligation which, pursuant to the terms of the Originator
Purchase Agreement to which such Originator is a party, is owed by an "Excluded
Obligor" (as defined therein) or is otherwise of a type which is not to be sold
to the Transferor thereunder.
"Register" has the meaning specified in Section 11.03(d).
"Related Security" means with respect to any Receivable:
(i) all security interests or liens and property subject
thereto from time to time purporting to secure payment of such
Receivable, whether pursuant to the Contract related to such
Receivable or otherwise, together with all financing statements
authorized by an Obligor describing any collateral securing such
Receivable;
(ii) all guaranties, insurance and other agreements or
arrangements of whatever character from time to time supporting or
securing payment of such Receivable whether pursuant to the Contract
related to such Receivable or otherwise;
(iii) all other books, records and other information
(including, without limitation, computer programs, tapes, discs,
punch cards, data processing software and related property and
rights) relating to such Receivable and the related Obligor;
(iv) all of the Borrower's, the Transferor's and the
applicable Originator's right, title and interest in and to all (A)
Contracts or other agreements or documents to the extent that they
evidence, secure or otherwise relate to such Receivable and (B) to
the extent included in the definition of "Related Security" in the
Originator Purchase Agreement, returned or repossessed goods, if
any, the sale of which by the applicable Originator gave rise to
such Receivable;
(v) all of the Borrower's and the Transferor's right, title
and interest in, to and under the Collateral Agreements;
(vi) in the case of the Borrower and the Transferor, each
Credit Default Swap; and
(vii) all Proceeds of the foregoing.
28
"Release" has the meaning specified in Section 2.06(b)(iv).
"Reportable Event" means any reportable event as defined in Section
4043(c) of ERISA or the regulations issued thereunder, other than those events
as to which the 30-day notice period referred to in Section 4043(c) of ERISA has
been waived, with respect to a Plan (other than a Plan maintained by an ERISA
Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m)
or (o) of Section 414 of the IRC).
"Reporting Date" means any date on which a Portfolio Report is
delivered or required to be delivered by the Collection Agent pursuant to
Section 2.3 of the Servicing Agreement.
"Required Committed Lenders" means Committed Lenders representing
more than 50% of the Aggregate Commitment or, if the Commitments have been
terminated, Committed Lenders that represented more than 50% of the Aggregate
Commitment immediately prior to such termination; provided that, subject to the
terms of the relevant Asset Purchase Agreement, so long as any Conduit Lender in
any Lender Group holds any Loans hereunder, the Committed Lenders in such Lender
Group shall give any vote or direction hereunder only with the consent or at the
direction of the related Funding Agent on behalf of such Conduit Lender. Solely
for purposes of this definition, a Lender that has defaulted on its funding
obligations hereunder (a "Defaulted Lender") shall not be considered a
"Committed Lender" and the Aggregate Commitment shall be calculated without
including the Commitment of such Defaulted Lender.
"Responsible Officer" means, with respect to any Transaction Party,
the president, any vice president, the chief financial officer, the treasurer,
the comptroller, the assistant comptroller or the assistant treasurer of such
Transaction Party.
"Restricted Payments" has the meaning specified in Section 5.01(o).
"Retro Pricing Accruals" means, for any Obligor, after the Retro
Pricing Approval Date, the aggregate amount of accruals identified in Parent
Guarantor's consolidated balance sheet in accordance with GAAP and consistent
with the Parent Guarantor's practices as in effect on the Amendment Effective
Date (a) that relate to Receivables, and (b) that are established in respect of
liabilities that may result from annual retroactive price negotiations between
the applicable Originator or Parent Guarantor and such Obligor and at all other
times, zero.
"Retro Pricing Adjustment" means a credit granted to any Obligor
pursuant to annual retroactive price negotiations between the applicable
Originator or Parent Guarantor and such Obligor.
"Retro Pricing Approval Date" means the date specified as such in a
written notice delivered by all of the Committed Lenders to the Collection
Agent, which notice shall not be delivered until after the next due date on
which the Committed Lenders receive a satisfactory report pursuant to Section
5.02(b).
29
"S&P" means Standard & Poor's Rating Services, a division of
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Scheduled Commitment Termination Date" means December 31, 2009.
"SEC" means the Securities and Exchange Commission.
"Secured Parties" means, collectively, the Lenders, each Agent, each
Hedge Counterparty and each other Indemnified Party.
"Senior Credit Agreement" means that certain Fourth Amended and
Restated Credit Agreement dated as of December 17, 2004 among TRW Automotive
Holdings Corp., TRW Automotive Intermediate Holdings Corp., TRW Automotive, the
foreign subsidiary borrowers party thereto, the lenders party thereto from time
to time, JPMorgan Chase Bank, as administrative agent, and the other agents
party thereto, as such agreement is amended, supplemented or otherwise modified
from time to time.
"Senior Note Indentures" means the Indentures dated as of February
18, 2003, among the TRW Automotive, the subsidiaries party thereto and the
trustee named therein from time to time relating to the Senior Notes (as defined
in the Senior Credit Agreement), as in effect on the Closing Date and as
amended, restated, supplemented or otherwise modified from time to time in
accordance with the requirements thereof.
"Senior Subordinated Note Indentures" means the Indentures dated as
of February 18, 2003, among TRW Automotive, the subsidiaries party thereto and
the trustee named therein from time to time relating to the Senior Subordinated
Notes (as defined in the Senior Credit Agreement), as in effect on the Closing
Date and as amended, restated, supplemented or otherwise modified from time to
time in accordance with the requirements thereof.
"Servicing Agreement" means that certain Amended and Restated
Servicing Agreement dated as of the Amendment Effective Date among the
Collection Agent, the Borrower, the Sub-Collection Agents and the Administrative
Agent, as amended, restated, supplemented or otherwise modified from time to
time in accordance with the terms hereof and thereof.
"Servicing Fee" has the meaning specified in Section 2.04(b).
"Servicing Fee Payment Date" means each Monthly Reporting Date.
"Servicing Fee Percentage" means 1.0% per annum or, following a
Collection Agent Default and the appointment of a successor Collection Agent
pursuant to Article VI, such other rate per annum as may be agreed by such
successor Collection Agent and the Administrative Agent with the consent of the
Required Committed Lenders pursuant to Section 2.04(b).
"Servicing Fee Reserve" means, on any date, an amount equal to:
(OBR x SFRR)
30
where:
OBR = the aggregate Outstanding Balance
of all Pool Receivables at the close
of business of the Collection Agent
on such date.
SFRR = the Servicing Fee Reserve Ratio on such date.
"Servicing Fee Reserve Ratio" means, as of any Monthly Reporting
Date and continuing until (but not including) the next succeeding Monthly
Reporting Date, an amount (expressed as a percentage) equal to the product of
(i) the Servicing Fee Percentage and (ii) a fraction having as the numerator, 2
times the Days Sales Outstanding as of such earlier Monthly Reporting Date, and
as the denominator, 360.
"Settlement Date" for any Tranche means (i) the last day of each
Tranche Period for such Tranche and (ii) on and after the occurrence of the
Termination Date, each other Business Day specified by the Administrative Agent
(which, in the discretion of the Administrative Agent, may be as frequently as
daily) in a written notice to the Collection Agent and the Funding Agents.
"Special Concentration Factor" means, with respect to any Special
Obligor, the percentage specified opposite such Special Obligor's name on
Schedule II, as such Schedule may be amended from time to time in accordance
with the definition of "Special Obligor."
"Special Obligor" means, at any time, an Obligor specified on
Schedule II and for which all conditions specified with respect to such Obligor
on Schedule II are satisfied (including, if applicable, the maintenance of a
Credit Default Swap with respect to such Obligor), as such Schedule may be
amended from time to time as set forth below. Schedule II may be amended from
time to time by the Administrative Agent to add the name of any Obligor or to
increase the Special Concentration Factor of any Obligor specified therein only
at the request of the Borrower and with the prior written consent of the
Required Committed Lenders. Upon not less than three Business Days' notice to
the Borrower and the Collection Agent, the Administrative Agent may in its sole
discretion and, if so directed by the Required Committed Lenders the
Administrative Agent shall, from time to time amend Schedule II to delete the
name of any Obligor or to reduce the Special Concentration Factor of any
Obligor; provided that, subject to the provisions of Schedule II, no such
deletion or amendment shall be made with respect to any Special Obligor for
which a Credit Default Swap remains in effect. Any amendment to Schedule II
shall be effected by the delivery of a new Schedule II by the Administrative
Agent to the Borrower, the Collection Agent and each Funding Agent.
"Special Indemnified Amounts" has the meaning specified in Section
2.6(a) of the Servicing Agreement.
"Specified Bankruptcy Opinion Provisions" means the factual
assumptions (including those contained in the factual certificate referred to
therein) and the actions to be taken by the Transaction Parties, in each case as
specified in the legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ relating to certain
bankruptcy matters delivered on the Closing Date.
31
"Stress Factor" means at any time: (i) so long as the Parent
Guarantor has a published Debt Rating from S&P of B or better and from ▇▇▇▇▇'▇
of B2 or better, 2.0 and (ii) at any other time, 2.5.
"Sub-Collection Agent" has the meaning specified in Section 2.1 of
the Servicing Agreement.
"Subsidiary" means, with respect to any Person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, directly or indirectly, owned, controlled or held, or (b) that
is, at the time any determination is made, otherwise controlled (as defined in
the definition of Affiliate), in each case of clauses (a) and (b), by the parent
or one or more Subsidiaries of the parent or by the parent and one or more
Subsidiaries of the parent.
"Swap Agreement" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or
any similar transaction or any combination of these transactions, provided that
no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Parent Guarantor or a Subsidiary thereof shall be a Swap
Agreement.
"Tangible Net Worth" means at any time an amount (calculated without
duplication) equal to (a) the Outstanding Balance of all Receivables purchased
by the Borrower from the Transferor under the Transfer Agreement (other than
Defaulted Receivables) plus (b) cash and cash equivalents owned by the Borrower,
minus (c) the Aggregate Principal Balance, minus (d) the aggregate outstanding
principal balance of the Intercompany Note.
"Taxes" means any and all present or future taxes (including,
without limitation, value added taxes), levies, imposts, duties (including stamp
duties), deductions, charges (including, without limitation, ad valorem charges)
or withholdings imposed by any Official Body.
"Termination Date" means the earliest of (a) the Scheduled
Commitment Termination Date, (b) the date determined pursuant to Section 7.01
and (c) the date specified by the Borrower on not less than thirty days' notice
to the Administrative Agent and each Funding Agent.
"Termination Event" has the meaning specified in Section 7.01.
"Total Reserves" means, at any time, an amount equal to the sum of
(i) the Loss and Dilution Reserve plus (ii) the Carrying Cost Reserve plus (iii)
the Servicing Fee Reserve.
"Tranche" has the meaning specified in Section 2.10.
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"Tranche Period" means, with respect to any Tranche, (i) initially,
the period commencing on (and including) the applicable Borrowing Date and
ending on (and including) the earlier of the next Monthly Settlement Date and
the Weekly Settlement Date specified by the Borrower in the applicable Borrowing
Request, and (ii) thereafter, each successive period commencing on (but
excluding) the last day of the immediately preceding Tranche Period for such
Tranche and ending on (and including) the earlier of the next Monthly Settlement
Date and the Weekly Settlement Date specified by the Borrower in a written
notice to each Funding Agent not later than (x) in the case of a Eurodollar
Tranche, 1:00 P.M. (New York City time) on the third Business Day immediately
before the first day of such Tranche Period and (y) in the case of any other
Tranche, 9:30 A.M. (New York City time) on the Business Day immediately before
the first day of such Tranche Period; provided, however, that:
(i) any Tranche Period (other than of one day) which would
otherwise end on a day which is not a Business Day shall be extended
to the next succeeding Business Day (provided, however, that if
Interest in respect of such Tranche Period is computed by reference
to the Adjusted Eurodollar Rate, and such Tranche Period would
otherwise end on a day which is not a Business Day, and there is no
subsequent Business Day in the same calendar month as such day, such
Tranche Period shall end on the next preceding Business Day);
(ii) in the case of any Tranche Period of one day, (A) if such
Tranche Period is the initial Tranche Period for a Tranche, such
Tranche Period shall be the applicable Borrowing Date; (B) any
subsequently occurring Tranche Period which is one day shall, if the
immediately preceding Tranche Period is more than one day, be the
last day of such immediately preceding Tranche Period and, if the
immediately preceding Tranche Period is one day, be the day next
following such immediately preceding Tranche Period; and (C) if such
Tranche Period occurs on a day immediately preceding a day which is
not a Business Day, such Tranche Period shall be extended to the
next succeeding Business Day;
(iii) in the case of any Tranche Period for any Tranche which
commences before the Termination Date and would otherwise end on a
date occurring after the Termination Date, such Tranche Period shall
end on the Termination Date and the duration of each Tranche Period
which commences on or after the Termination Date shall be a period
from and including the last day of the immediately preceding Tranche
Period (or, in the case of the initial Tranche Period immediately
following the Termination Date, from and including the Termination
Date) to but excluding the next Settlement Date; and
(iv) at any time when the Base Rate shall have been in effect
for a Tranche Period of ten consecutive Business Days, and the
conditions set forth in clauses (i) and (iv) of the definition of
Alternate Rate do not exist, any Funding Agent may, on behalf of the
Committed Lenders in its Lender Group, upon one Business Day's
notice to the Borrower (with a copy to the Administrative Agent),
select as the next succeeding Tranche Period for such Tranche (and
any subsequent Tranche Periods designated by such Funding Agent) a
period of one month during which Interest shall be computed by
reference to the Adjusted
33
Eurodollar Rate; provided, however, that prior to such selection the
Borrower may notify the applicable Funding Agent that, in view of
anticipated Collections and repayments, Interest should continue to
be computed by reference to the Base Rate.
"Transaction Documents" means this Agreement, the Notes, the
Transfer Agreement, the Originator Purchase Agreement, the Servicing Agreement,
the Performance Guaranty, the Control Agreements, the Fee Letters, the Credit
Default Swaps and all other instruments, documents and agreements executed
and/or delivered in connection therewith.
"Transaction Parties" means, collectively, the Borrower, the
Transferor, the Originators, the Parent Guarantor and (so long as it is TRW
Automotive U.S. LLC or an Affiliate thereof) the Collection Agent and each
Sub-Collection Agent.
"Transfer Agreement" means the Amended and Restated Transfer
Agreement dated as of the Amendment Effective Date between the Borrower and the
Transferor, as amended, restated, supplemented or otherwise modified from time
to time in accordance with the terms hereof and thereof.
"Transferor" means TRW Automotive Receivables LLC, a Delaware
limited liability company, and any successor thereto.
"TRW Automotive" means TRW Automotive Inc. (f/k/a TRW Automotive
Acquisition Corp.), a Delaware corporation, and any successor thereto.
"TRW Automotive U.S. LLC" means TRW Automotive U.S. LLC, a Delaware
limited liability company, and any successor thereto.
"UCC" means the Uniform Commercial Code as from time to time in
effect in the specified jurisdiction.
"Weekly Report" means a report furnished by the Collection Agent
pursuant to Section 2.3(b) of the Servicing Agreement in substantially the form
attached as Exhibit A-2 to the Servicing Agreement.
"Weekly Reporting Date" means the third Business Day of each
calendar week.
"Weekly Settlement Date" means the second Business Day immediately
following each Weekly Reporting Date.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
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 UCC in the State of New York, as in effect on the date hereof
and not specifically defined herein, are used herein as defined in such Article
9. Unless otherwise expressly indicated, all references
34
herein to "Article," "Section," "Schedule" or "Exhibit" means articles and
sections of, and schedules and exhibits to, this Agreement. Headings are for
purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof. Any reference to any Law shall be deemed
to be a reference to such Law as the same may be amended or re-enacted from time
to time. Any reference to any Person appearing in any of the Transaction
Documents shall include its successors and permitted assigns.
SECTION 1.03 Amendment and Restatement. Subject to the satisfaction
of the conditions precedent set forth in Section 3.01, this Agreement amends and
restates the Existing Loan Agreement in its entirety. This Agreement is not
intended to constitute a novation of any obligations under the Existing Loan
Agreement. Upon the effectiveness of this Agreement (the date of such
effectiveness being the "Amendment Effective Date"), each reference to the
Existing Loan Agreement in any other document, instrument or agreement executed
and/or delivered in connection therewith shall mean and be a reference to this
Agreement. By its execution of this Agreement, each of the parties hereto hereby
consents to the execution and delivery of (i) the Servicing Agreement, the
Transfer Agreement and the Performance Guaranty (in each case as amended and
restated as of the date hereof) by the parties thereto and (ii) the amendment of
even date herewith to the Originator Purchase Agreement.
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
SECTION 2.01 The Loans.
(a) On the terms and subject to the conditions hereof, on the
Amendment Effective Date, and thereafter from time to time prior to the
Termination Date, each Conduit Lender may in its sole discretion, and each
Committed Lender shall if the Conduit Lender in its related Lender Group elects
not to do so, make Loans to the Borrower in an amount in Dollars, for each
Lender Group, equal to its Lender Group Percentage of the amount requested by
the Borrower pursuant to Section 2.02; provided that, after giving effect to
such Loans:
(i) the aggregate outstanding principal amount of the Loans
for any Lender Group shall not exceed its Lender Group Limit; and
(ii) the aggregate outstanding principal amount of the Loans
for all Lenders shall not exceed the Facility Limit.
If there is more than one Committed Lender in a Lender Group, each such
Committed Lender shall lend its Pro Rata Share of such Lender Group's Lender
Group Percentage of each Loan, to the extent not loaned by the related Conduit
Lender. Each borrowing of Loans hereunder (each a "Borrowing") shall be in a
minimum principal amount equal to such amount as will ensure that (x) no Lender
Group's Lender Group Percentage of such Borrowing would be less than $1,000,000
and (y) each Lender Group's Lender Group Percentage of such Borrowing would be
an integral multiple of $100,000. Subject to the foregoing and to the
limitations set forth in Section 2.05(d), the Borrower may borrow, prepay and
reborrow the Loans hereunder.
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(b) The Loans made by the Lenders in any Lender Group shall be
evidenced by a promissory note in the form attached hereto as Exhibit G (each, a
"Note"). Each Note shall be dated the date of this Agreement, shall be duly
executed by the Borrower, shall be payable to the Funding Agent for the
applicable Lender Group and shall have a stated maximum principal amount equal
to the Lender Group Limit for such Lender Group. Each Funding Agent may, in its
discretion, enter on a schedule attached to its Note a notation (which may be
computer generated) with respect to each Loan made hereunder by the Lenders in
its Lender Group of (i) the date and principal amount thereof and (ii) each
payment and repayment of principal thereof. The failure of any Funding Agent to
make any such notation on the schedule to its Note shall not limit or otherwise
affect the obligation of the Borrower to repay the Loans in accordance with the
terms thereof and hereof.
(c) The Borrower may, from time to time upon at least five Business
Days' prior written notice via electronic mail followed by telecopy to each
Funding Agent, elect to reduce the Facility Limit, provided that after giving
effect to any such reduction and any principal payments on such date, the
Aggregate Principal Balance shall not exceed the Facility Limit. Any such
reduction shall reduce each Lender Group Limit (and the corresponding Conduit
Lending Limit(s)) hereunder ratably in accordance with their respective Lender
Group Percentages and shall reduce each Committed Lender's Commitment ratably
within its Lender Group in accordance with each Committed Lender's Pro Rata
Share. Once the Facility Limit is reduced pursuant to this Section 2.01(c) it
may not subsequently be reinstated without the consent of each Committed Lender.
SECTION 2.02 Borrowing Procedures.
(a) Borrowing Request.
(i) The Borrower shall request a Borrowing hereunder by submitting
to each Funding Agent a written notice, substantially in the form of
Exhibit B (each, a "Borrowing Request") prior to (A) in the case of Loans
which are to accrue interest by reference to the Adjusted Eurodollar Rate,
1:00 p.m. (New York City time) on the third Business Day prior to the date
of the proposed Borrowing (each, a "Borrowing Date") and (B) with respect
to a Loan of any other Rate Type, 9:30 a.m. (New York City time) on the
Business Day prior to the Borrowing Date.
(ii) Each Borrowing Request shall: (A) specify (1) the amount of the
requested Borrowing and the allocation of such amount among the Lender
Groups, (2) the Aggregate Principal Balance after giving effect to such
Borrowing, (3) the desired Borrowing Date and (4) the desired Tranche
Period(s) and allocations of the principal amount of such Borrowing
thereto pursuant to Section 2.10 and (B) certify that, after giving effect
to the proposed Borrowing, (1) the Percentage Factor would not exceed the
Maximum Percentage Factor, as determined by reference to the most recent
Portfolio Report delivered under the Servicing Agreement (which Portfolio
Report shall contain information as of a date not more than five Business
Days prior to the proposed Borrowing Date) and (2) in the good faith
judgment of the Collection Agent, the Percentage Factor would not exceed
the Maximum Percentage Factor, as determined by
36
reference to the most recent information then available to the Collection
Agent. Each Borrowing Request shall be irrevocable and binding on the
Borrower.
(b) Conduit Lender Acceptance or Rejection. If a Conduit Lender
shall receive a Borrowing Request on a day prior to its Conduit Lender
Termination Date, such Conduit Lender shall instruct the related Funding Agent
to accept or reject such request by giving notice to the Borrower and the
Administrative Agent through telephone or facsimile by no later than the close
of business on the Business Day immediately prior to the applicable Borrowing
Date. If a Conduit Lender rejects a Borrowing Request, the related Funding Agent
shall promptly notify the related Committed Lenders of such rejection. At no
time will a Conduit Lender be obligated to make Loans hereunder regardless of
any notice given by it pursuant to this Section.
(c) Committed Lender's Commitment.
(i) If a Conduit Lender rejects a Borrowing Request, or if the
Conduit Lender Termination Date has occurred for a Conduit Lender,
any Loan requested by the Borrower in such Borrowing Request that
would otherwise be made by such Conduit Lender shall be made by the
related Committed Lenders in its Lender Group on a pro rata basis in
accordance with their respective Pro Rata Shares of such Loan.
(ii) The obligations of any Committed Lender to make Loans
hereunder are several from the obligations of any other Committed
Lenders (whether or not in the same Lender Group). The failure of
any Committed Lender to make Loans hereunder shall not release the
obligations of any other Committed Lender (whether or not in the
same Lender Group) to make Loans hereunder, but no Committed Lender
shall be responsible for the failure of any other Committed Lender
to make any Loan hereunder.
(iii) Notwithstanding anything herein to the contrary, a
Committed Lender shall not be obligated to fund any Loan at any time
on or after the Termination Date or if, after giving effect thereto,
the aggregate outstanding principal balance of the Loans funded by
such Committed Lender hereunder would exceed an amount equal to (i)
such Committed Lender's Commitment divided by 1.02 less (ii) such
Committed Lender's ratable share of the aggregate outstanding
principal balance of the Loans held by the Conduit Lender in such
Committed Lender's Lender Group.
(d) Disbursement of Funds. On each Borrowing Date, each applicable
Lender shall remit its share of the aggregate amount of the Loans requested by
the Borrower to the account of its related Funding Agent specified therefor to
such Lender by wire transfer of same day funds. Upon receipt of such funds, each
Funding Agent shall remit such funds to the account specified by the Borrower in
the relevant Borrowing Request by wire transfer of same day funds.
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SECTION 2.03 Use of Proceeds. The Borrower shall use the proceeds of
the Loans only to (i) pay the purchase price for Receivables sold to it pursuant
to the terms of the Transfer Agreement, (ii) pay transaction costs incurred in
connection with the consummation of the transactions contemplated by the
Transaction Documents and (iii) fund payments of interest and principal with
respect to the Intercompany Note.
SECTION 2.04 Interest and Fees.
(a) On each Settlement Date for a Tranche, the Borrower shall pay to
the relevant Funding Agent all accrued and unpaid Interest with respect to such
Tranche.
(b) The Collection Agent shall be entitled to receive a fee (the
"Servicing Fee") on the average daily Outstanding Balance of the Pool
Receivables, payable in arrears on each Servicing Fee Payment Date at a rate per
annum equal to the Servicing Fee Percentage. Upon three Business Days' notice to
the Funding Agents, the Collection Agent (if not an Originator, the Borrower or
its designee or an Affiliate of the Borrower or an Originator) may, with the
prior written consent of the Administrative Agent and the Required Committed
Lenders, elect to be paid, as such fee, another percentage per annum on the
average daily Outstanding Balance of the Pool Receivables. Notwithstanding
anything herein to the contrary, the Servicing Fee shall be payable only from
Collections pursuant to, and subject to the priority of payments set forth in,
Sections 2.06 and 2.07. To the extent such Collections are not sufficient to pay
the Servicing Fee in full, none of the Borrower, the Administrative Agent, the
Funding Agents or the Lenders shall have any liability for the deficiency.
(c) The Borrower shall pay to the Administrative Agent and each
Funding Agent certain fees (collectively, the "Fees") in the amounts and on the
dates set forth in (i) the fee agreement of even date herewith between the
Borrower and the Administrative Agent (as the same may be amended or restated
from time to time, the "Administrative Agent Fee Letter") and (ii) the amended
and restated fee agreement of even date among the Borrower, the Administrative
Agent and the Funding Agents (as the same may be further amended or restated
from time to time, the "Lender Fee Letter").
(d) On or before the Business Day immediately before the end of each
Tranche Period, the relevant Funding Agent shall furnish the Borrower with an
invoice setting forth the amount of the accrued and unpaid Interest and Fees for
such Tranche Period with respect to the Tranches held by the Lender(s) in such
Funding Agent's Lender Group. To the extent necessary, such Interest shall be
calculated using an estimate of the CP Rate for the remaining days in such
Tranche Period, provided that such Interest shall be adjusted as follows: if the
Funding Agent shall have used an estimate of the CP Rate with respect to the
preceding Tranche Period, the Funding Agent shall compute the actual CP Rate and
Interest for such Tranche Period and (i) if the actual Interest so computed is
greater than the estimated Interest calculated for such preceding Tranche
Period, the Interest calculated pursuant to the preceding sentence for the
current Tranche Period shall be increased by the amount of such difference, and
(ii) if the actual Interest so computed is less than the estimated Interest for
such preceding Tranche Period, the Interest calculated pursuant to the preceding
sentence for the current Tranche Period shall be decreased by the amount of such
difference.
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SECTION 2.05 Payment and Prepayment of Loans. The Borrower shall
repay the outstanding principal amount of each Loan on the Maturity Date. Prior
thereto, the Borrower:
(a) shall, immediately upon any acceleration of the Loans pursuant
to Section 7.02, repay the amount of the Loans to the extent so accelerated;
(b) shall, if on any date the Percentage Factor exceeds the Maximum
Percentage Factor, as determined by reference to the most recent Portfolio
Report delivered under the Servicing Agreement, make a prepayment of the Loans
on such date in an amount sufficient to cause the Percentage Factor to be less
than or equal to the Maximum Percentage Factor, as determined by reference to
such Portfolio Report;
(c) shall, if on any date the Aggregate Principal Balance of the
Loans exceeds the Facility Limit, make a prepayment of the Loans on such date in
an amount sufficient to cause the Aggregate Principal Balance to be less than or
equal to the Facility Limit, such prepayment to be made solely out of
Collections available for such purpose pursuant to Section 2.06 or 2.07, as
applicable; and
(d) from and after the Termination Date, shall repay the Loans out
of Collections available for such purpose pursuant to Section 2.07.
The Borrower may, at its option, prepay on any Business Day all or any portion
of the Loans upon prior written notice delivered to each Funding Agent not later
than 1:00 P.M. (New York City time) three Business Days prior to the date of
such payment, in the case of Loans accruing interest by reference to the
Adjusted Eurodollar Rate, and no later than 9:30 A.M. (New York City time) two
Business Days prior to the date of such payment, in the case of Loans of any
other Rate Type. Each such notice shall be in the form attached as Exhibit I and
shall (i) specify the aggregate amount of the prepayment to be made on the Loans
and the Tranches to which such prepayment is to be applied and (ii) specify the
Business Day on which the Borrower will make such prepayment. Each such
prepayment shall be made ratably among the Lender Groups based on the aggregate
outstanding Principal Balance of the Loans held by each. Each prepayment of the
Loans (whether optional or mandatory) must be accompanied by a payment of all
accrued and unpaid Interest on the amount prepaid and any other amounts
(including amounts payable under Section 2.11) due hereunder in respect of such
prepayment. No optional prepayment shall be made by the Borrower hereunder
except out of Collections.
SECTION 2.06 Application of Collections Prior to Termination Date.
(a) On each Business Day prior to the Termination Date, the
Collection Agent shall cause all Collections deposited into any Collection
Account or otherwise received prior to such Business Day to be remitted to the
Concentration Account.
(b) On each Business Day prior to the Termination Date, the
Collection Agent shall cause all Collections on deposit in the Concentration
Account (including, if applicable, any investment earnings received with respect
to funds on deposit in the Concentration Account) to be applied in the following
order and priority:
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(i) on a pro rata basis, set aside and hold in trust for the
Lenders, the Funding Agents, the Administrative Agent, the Hedge
Counterparties and the Collection Agent an amount equal to the
aggregate Interest, Fees, Credit Default Swap Obligations and
Servicing Fee accrued through such day and not previously set aside,
such amount to be allocated among the Lenders, the Funding Agents,
the Administrative Agent, the Hedge Counterparties and the
Collection Agent ratably in accordance with the proportion of such
amounts owing to each such Person;
(ii) if the Percentage Factor exceeds the Maximum Percentage
Factor as determined by reference to the most recent Portfolio
Report delivered under the Servicing Agreement, or the Aggregate
Principal Balance exceeds the Facility Limit, deposit to the
Collateral Account an amount necessary to cause the Percentage
Factor to be less than or equal to the Maximum Percentage Factor, as
determined by reference to such Portfolio Report, and the Aggregate
Principal Balance to be less than or equal to the Facility Limit;
(iii) if any Borrower Obligations (other than Interest, the
Servicing Fee and Loans) are then due and payable by the Borrower to
any Secured Party, pay to each such Secured Party (ratably in
accordance with the amounts owing to each) the Borrower Obligations
so due and payable;
(iv) [Reserved]; and
(v) apply any remaining Collections in accordance with Section
2.06(h) (any such remittance, a "Release"); provided that, if the
conditions precedent for such Release set forth in Section 3.02 are
not satisfied, the Collection Agent shall retain such Collections in
the Concentration Account and shall apply such Collections in
accordance with this Section 2.06 on the next Business Day.
(c) On each Settlement Date for a Tranche, the Collection Agent
shall pay to the relevant Lender(s) all Collections set aside for Interest in
respect of such Tranche pursuant to Section 2.06(b)(i). On each date on which
any Fees are payable pursuant to the Fee Letters, the Collection Agent shall pay
such Fees to the Persons entitled thereto pursuant to the Fee Letters out of
Collections set aside for such purpose pursuant to Section 2.06(b)(i). On each
date on which any Credit Default Swap Obligations are payable pursuant to the
terms of the Credit Default Swaps, the Collection Agent shall pay such Credit
Default Swap Obligations to the Hedge Counterparties entitled thereto out of
Collections set aside for such purpose pursuant to Sections 2.06(b)(i) and
(iii).
(d) [Reserved].
(e) In the event any deposit is made to the Collateral Account
pursuant to Section 2.06(b)(ii), the amount of such deposit shall be allocated
among all Lender Groups ratably in proportion to the outstanding principal
balance of the Loans held by each. On the next Settlement Date applicable to any
such Lender Group, the Administrative Agent shall distribute
40
to the related Funding Agent such Lender Group's allocable share of such deposit
for application to the repayment of the Loans held by such Lender Group.
Notwithstanding the foregoing, if on any Business Day after such deposit is made
and prior to the distribution of such deposit pursuant to this Section 2.06(e),
the Collection Agent delivers a Portfolio Report with more recent data
indicating that the Percentage Factor is less than the Maximum Percentage
Factor, the Collection Agent may request the Administrative Agent to withdraw
the Collections so deposited for application in accordance with Section 2.06(b)
to the extent that, after giving effect to such withdrawal and application, the
Percentage Factor would not exceed the Maximum Percentage Factor, as determined
by reference to such Portfolio Report.
(f) On each Servicing Fee Payment Date, the Collection Agent shall
pay to itself the accrued and unpaid Servicing Fee out of Collections set aside
for such purpose pursuant to Section 2.06(b)(i).
(g) So long as no Termination Event or Involuntary Bankruptcy Event
has occurred and is continuing, and the Parent Guarantor has a published Debt
Rating of B or better from S&P and B2 or better from ▇▇▇▇▇'▇, the Collection
Agent shall not be required to segregate any Collections set aside by it
pursuant to Section 2.06(b)(i) from its other funds. At all other times, the
Collection Agent shall segregate such Collections from its other funds by
retaining the amount of such Collections in the Concentration Account.
(h) Any Collections available pursuant to Section 2.06(b)(v) shall
be applied by the Collection Agent, on behalf of the Borrower: (i) first, if so
requested by the Borrower, to pay or prepay (or set aside for the payment or
prepayment of) Loans or other Borrower Obligations, (ii) second, to pay the
purchase price for Receivables to be acquired by the Borrower from the
Transferor under the Transfer Agreement, (iii) third, to make payments of
principal and interest in respect of the Intercompany Note, and (iv) fourth, to
invest in Permitted Investments, to pay other expenses and obligations as
required under the Borrower's limited liability company agreement, to pay
dividends to the Borrower's members and in such other manner as the Borrower may
specify and that is permitted under the terms of the Transaction Documents.
Unless otherwise specifically directed by the Borrower, the Collection Agent
shall cause all Collections available pursuant to Section 2.06(b)(v) to be
released to the Seller Agent under (and as defined in) the Originator Purchase
Agreement on a daily basis, and the Collections so released to the Seller Agent
will be deemed to be applied in accordance with this Section 2.06(h). On or
prior to each Monthly Reporting Date the Collection Agent shall determine the
portion of the Collections so released which were applied to each of the items
described in clauses (i) through (iv) above during the related Calculation
Period and shall record the same in its books and records.
SECTION 2.07 Application of Collections After Termination Date.
(a) On each Business Day on and after the Termination Date, the
Collection Agent shall cause all Collections deposited into any Collection
Account or otherwise received prior to such Business Day to be remitted to the
Concentration Account.
(b) On the Termination Date, and on each Business Day thereafter
until the Final Payout Date, the Collection Agent shall transfer to the
Collateral Account all Collections
41
on deposit in the Concentration Account or otherwise held by it on such date
(including amounts previously set aside pursuant to Section 2.06(b)).
(c) On each Settlement Date to occur on or after the Termination
Date, the Administrative Agent shall distribute all funds on deposit in the
Collateral Account (including, without limitation, any investment earnings
received with respect to such funds) in the following order of priority:
(i) first, pay, to the Administrative Agent an amount equal to the
Borrower Obligations owing to the Administrative Agent in respect of costs
and expenses incurred in connection with the enforcement of any
Transaction Document or the collection of any amounts due thereunder;
(ii) second, if the Collection Agent is a Person other than TRW
Automotive U.S. LLC or an Affiliate thereof, pay to the Collection Agent
the accrued and unpaid Servicing Fee;
(iii) third, pay to the Lenders, the Funding Agents and the
Administrative Agent an amount equal to the aggregate accrued and unpaid
Interest on the Loans and Fees (ratably in accordance with the proportion
of such amounts owing to each such Person);
(iv) fourth, pay to the Lenders an amount equal to the aggregate
Principal Balance of the Loans (ratably in accordance with the outstanding
principal balance of such Loans held by each);
(v) fifth, if any Borrower Obligations (other than Interest, Fees,
the Servicing Fee and the Loans) are then due and payable by the Borrower
to any Secured Party, pay to each such Secured Party (ratably in
accordance with the amounts owing to each) the Borrower Obligations so due
and payable;
(vi) sixth, [Reserved]
(vii) seventh, if the Collection Agent is TRW Automotive U.S. LLC or
an Affiliate thereof, pay to the Collection Agent the accrued and unpaid
Servicing Fee; and
(viii) eighth, after all Borrower Obligations are paid in full, pay
to the Borrower any remaining funds in accordance with Section 2.07(e).
(d) [Reserved].
(e) Any Collections remitted to the Borrower pursuant to Section
2.07(c)(viii) shall be applied by the Collection Agent, on behalf of the
Borrower: (i) first, to make payments of principal and interest in respect of
the Intercompany Note, and (ii) second, in such other manner as the Borrower may
specify and that is not prohibited by the terms of the Transaction Documents.
SECTION 2.08 Deemed Collections; Application of Payments.
42
(a) Unless otherwise required by applicable Law, and unless an
Obligor designates a payment be applied to a specific Receivable, all
Collections from an Obligor shall be applied to the oldest Receivables (whether
or not such Receivables are Pool Receivables) of such Obligor.
(b) If and to the extent the Administrative Agent, any Funding Agent
or any Lender shall be required for any reason to pay over to an Obligor any
amount received on its behalf hereunder, such amount shall be deemed not to have
been so received but rather to have been retained by the Borrower and,
accordingly, the Administrative Agent, such Funding Agent or such Lender, as the
case may be, shall have a claim against the Borrower for such amount, payable
when and to the extent that any distribution from or on behalf of such Obligor
is made in respect thereof.
(c) If on any day a Receivable becomes a Diluted Receivable, the
Borrower shall be deemed to have received on such day a Collection of such
Receivable in the amount of the applicable reduction or cancellation, and the
Borrower shall pay to the Collection Agent an amount equal to such reduction or
cancellation; provided that, prior to the Termination Date and so long as no
Termination Event has occurred and is continuing and the Percentage Factor is
less than or equal to the Maximum Percentage Factor (determined by reference to
the most recent Portfolio Report delivered under the Servicing Agreement), the
amount so payable by the Borrower shall not exceed the amount (if any) required
in order to cause (i) the Percentage Factor to be less than or equal to the
Maximum Percentage Factor, determined by reference to such Portfolio Report and
(ii) the Aggregate Principal Balance to be less than or equal to the Facility
Limit. Any such amount shall be applied by the Collection Agent as a Collection
in accordance with Section 2.06 or 2.07 hereof, as applicable.
(d) If on any day any of the representations or warranties in
Article IV was or becomes untrue with respect to a Receivable or the nature of
the Administrative Agent's interest therein, the Borrower shall be deemed to
have received on such day a Collection of such Receivable in full and the
Borrower shall, on such day, pay to the Collection Agent an amount equal to the
Outstanding Balance of such Receivable; provided that, prior to the Termination
Date and so long as no Termination Event has occurred and is continuing and the
Percentage Factor is less than or equal to the Maximum Percentage Factor
(determined by reference to the most recent Portfolio Report delivered under the
Servicing Agreement), the amount so payable by the Borrower shall not exceed the
amount (if any) required in order to cause (i) the Percentage Factor to be less
than or equal to the Maximum Percentage Factor, determined by reference to such
Portfolio Report and (ii) the Aggregate Principal Balance to be less than or
equal to the Facility Limit. Any such amount shall be allocated and applied by
the Collection Agent as a Collection in accordance with Section 2.06 or 2.07
hereof, as applicable.
SECTION 2.09 Payments and Computations, Etc.
(a) All amounts to be paid by the Borrower or the Collection Agent
to the Administrative Agent, any Funding Agent or any Lender hereunder shall be
paid no later than 11:00 A.M. (New York City time) on the day when due in same
day funds to the applicable Funding Agent's Account. All amounts to be deposited
by the Borrower or the Collection Agent
43
into the Collateral Account, any Funding Agent's Account or any other account
shall be deposited no later than 11:00 A.M. (New York City time) on the date
when due.
(b) Each of the Borrower and the Collection Agent shall, to the
extent permitted by law, pay interest on any amount not paid or deposited by it
when due hereunder (after as well as before judgment), at an interest rate per
annum equal to 2.00% per annum above the Base Rate, payable on demand.
(c) All computations of Interest, Fees, and other amounts 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 date of payment) elapsed, except that
computations of interest and Interest based on clause (i)(b)(A) of the
definition of Base Rate shall be made on the basis of a year of 365 days (or
366, as applicable). Whenever any payment or deposit to be made hereunder shall
be due on a day other than a Business Day, such payment or deposit shall be made
on the next succeeding Business Day and such extension of time shall be included
in the computation of such payment or deposit. Any computations by the
Administrative Agent or the applicable Funding Agent of amounts payable by the
Borrower hereunder shall be binding upon the Borrower absent manifest error.
(d) All payments required to be made hereunder to any Lender shall
be made by paying such amount to the applicable Funding Agent's Account in
accordance with this Section 2.09. Upon receipt of funds, such Funding Agent
shall pay such funds to the related Lender(s) owed such funds in accordance with
the records maintained by such Funding Agent. If a Funding Agent shall have paid
to any Lender any funds that (i) must be returned for any reason (including any
Event of Bankruptcy) or (ii) exceeds that which such Lender was entitled to
receive, such amount shall be promptly repaid to such Funding Agent by such
Lender.
(e) All payments of principal and interest in respect of any Tranche
and all other payments to be made by the Collection Agent or the Borrower
hereunder shall be made solely in Dollars.
SECTION 2.10 Tranches. Each Loan made by the Lenders in the same
Lender Group on any Borrowing Date shall be allocated to one or more "Tranche
Periods" as set forth in the definition of such term. Any portion of a Loan
having one Tranche Period and one Rate Type is referred to herein as a
"Tranche". Either the Borrower or (following a Termination Event or an Incipient
Termination Event) the Funding Agent for the applicable Lender Group may, upon
notice to the other party received at least three Business Days prior to the
last day of any Tranche Period in the case of the Borrower giving notice, or up
to the last day of such Tranche Period in the case of the Funding Agent giving
notice, either (i) divide any Tranche originating on such last day or having a
Tranche Period ending on such last day into two or more Tranches having an
aggregate Principal Balance equal to the Principal Balance of such divided
Tranche, or (ii) combine any two or more Tranches originating on such last day
or having Tranche Periods ending on such last day into a single Tranche having a
Principal Balance equal to the aggregate of the Principal Balance of such
Tranches; provided, however, that no Tranche owned by any Conduit Lender may be
combined with a Tranche owned by any other Lender and a Tranche held by the
Committed Lenders in any Lender Group may not be combined with any Tranche held
by the Committed Lenders in any other Lender Group.
44
SECTION 2.11 Breakage Costs.
(a) The Borrower shall indemnify the Lenders and any related Program
Support Provider against any loss or expense incurred by the Lenders and such
Program Support Providers, either directly or indirectly, as a result of the
failure of any Borrowing (other than a Borrowing of Loans, the Interest Rate for
which was to be determined by reference to the Base Rate) to be made for any
reason on the date specified by the Borrower pursuant to Section 2.02, including
any loss or expense incurred by the Lenders by reason of the liquidation or
reemployment of funds acquired by the Lenders (including funds obtained by
issuing Commercial Paper, obtaining deposits as loans from third parties and
reemployment of funds) to fund such Borrowing.
(b) The Borrower further agrees to pay all Liquidation Fees
associated with a reduction of the Principal Balance of any Tranche at any time.
(c) A certificate as to any loss, expense or Liquidation Fees
payable pursuant to this Section 2.11 submitted by any Lender, through its
Funding Agent, to the Borrower shall be conclusive in the absence of manifest
error.
SECTION 2.12 Illegality. Notwithstanding any other provision of this
Agreement, if the adoption of or any change in any Law or in the interpretation
or application thereof by any relevant Official Body shall make it unlawful for
any Lender to make or maintain Tranches for which Interest is calculated by
reference to the Adjusted Eurodollar Rate (each a "Eurodollar Tranche") as
contemplated by this Agreement or to obtain in the interbank Eurodollar market
the funds with which to make or maintain any such Eurodollar Tranche, (a) such
Lender shall promptly notify the Administrative Agent, its Funding Agent and the
Borrower thereof, (b) the obligation of such Lender to fund or maintain
Eurodollar Tranches or continue Eurodollar Tranches as such shall forthwith be
cancelled and (c) such Lender's Tranches then outstanding as Eurodollar
Tranches, if any, shall be converted on the last day of the Tranche Period for
such Tranches or within such earlier period as required by Law into Tranche that
accrue Interest based on the Base Rate (each a "Base Rate Tranche").
SECTION 2.13 Inability to Determine Eurodollar Rate. If prior to the
commencement of any Tranche Period for a Eurodollar Tranche:
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted Eurodollar Rate or the Eurodollar Rate, as
applicable, for such Tranche Period; or
(b) the Administrative Agent is advised by the Required Committed
Lenders that the Adjusted Eurodollar Rate or the Eurodollar Rate, as applicable,
for such Tranche Period will not adequately and fairly reflect the cost to such
Lenders of making or maintaining the related Tranche for such Tranche Period;
then the Administrative Agent shall give notice thereof to the Borrower and each
Funding Agent by telephone or telecopy as promptly as practicable thereafter
and, until the Administrative Agent notifies the Borrower and each Funding Agent
that the circumstances giving rise to such
45
notice no longer exist, (i) any request to convert a Tranche to, or to continue
any Tranche as, a Eurodollar Tranche shall be ineffective and such Tranche shall
be converted to or continued as on the last day of the Tranche Period applicable
thereto, a Base Rate Tranche and (ii) if any Borrowing Request requests a
Eurodollar Borrowing, such Borrowing shall be made as a Base Rate Tranche.
SECTION 2.14 Indemnity for Reserves and Expenses.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Indemnified Party
(except any such reserve requirement reflected in the Adjusted
Eurodollar Rate); or
(ii) impose on any Indemnified Party any other condition
affecting this Agreement, any Asset Purchase Agreement, any Program
Support Agreement or any other Transaction Document or Eurodollar
Tranches made or maintained by such Indemnified Party;
and the result of any of the foregoing shall be to increase the cost to such
Indemnified Party of making or maintaining any Eurodollar Tranche (or of
maintaining its obligation to fund any such Tranche or its obligations under any
Program Support Agreement or Asset Purchase Agreement) or to reduce the amount
of any sum received or receivable by such Indemnified Party hereunder (whether
of principal, interest or otherwise), then the Borrower will pay to such
Indemnified Party such additional amount or amounts as will compensate such
Indemnified Party for such additional costs incurred or reduction suffered.
(b) Subject to the limitations set forth in the Lender Fee Letter,
if any Indemnified Party determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Indemnified Party's capital or on the capital of such Indemnified Party's
holding company, if any, as a consequence of this Agreement, any Asset Purchase
Agreement or any Program Support Agreement or the Loans made or acquired by such
Indemnified Party, to a level below that which such Indemnified Party or holding
company could have achieved but for such Change in Law (taking into
consideration such Indemnified Party's policies and the policies of such
Indemnified Party's holding company with respect to capital adequacy), then from
time to time the Borrower will pay to such Indemnified Party such additional
amount or amounts as will compensate such Indemnified Party or such Indemnified
Party's holding company for any such reduction suffered.
(c) A certificate of an Indemnified Party setting forth the amount
or amounts necessary to compensate such Indemnified Party or its holding
company, as applicable, as specified in paragraph (a) or (b) of this Section
shall be delivered to the Borrower and shall be conclusive absent manifest
error. The Borrower shall pay such Indemnified Party the amount shown as due on
any such certificate within 10 days after receipt thereof.
(d) Promptly after any Indemnified Party has determined that it will
make a request for compensation pursuant to this Section 2.14, such Indemnified
Party shall notify the
46
Borrower of such determination. Failure or delay on the part of any Indemnified
Party to demand compensation pursuant to this Section shall not constitute a
waiver of such Indemnified Party's right to demand such compensation; provided
that the Borrower shall not be required to compensate an Indemnified Party
pursuant to this Section for any increased costs or reductions incurred more
than 180 days prior to the date that such Indemnified Party notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Indemnified Party's intention to claim compensation therefor;
provided, further, that, if the Change in Law giving rise to such increased
costs or reductions is retroactive, then the 180-day period referred to above
shall be extended to include the period of retroactive effect thereof.
SECTION 2.15 Indemnity for Taxes.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the recipient of such payment receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Official Body in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Official Body in accordance with applicable law.
(c) The Borrower shall indemnify each Indemnified Party within 10
days after written demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes paid by such Indemnified Party on or with respect to any payment
by or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Official Body. A certificate as to the amount of such payment or
liability delivered to the Borrower by an Indemnified Party, or by the
Administrative Agent on its own behalf, on behalf of another Agent or on behalf
of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to an Official Body, the Borrower shall deliver to
the related Funding Agent the original or a certified copy of a receipt issued
by such Official Body evidencing such payment, a copy of the return reporting
such payment or other evidence of such payment reasonably satisfactory to such
Funding Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding Tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
47
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
(f) If an Indemnified Party determines, in its sole discretion, that
it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.15, it shall pay over such refund
to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.15 with respect to
the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of such Indemnified Party and without interest (other than any interest
paid by the relevant Official Body with respect to such refund); provided that
the Borrower, upon the request of such Indemnified Party, agrees to repay the
amount paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Official Body) to such Indemnified Party in the event
such Indemnified Party is required to repay such refund to such Official Body.
This Section shall not be construed to require any Indemnified Party to make
available its Tax returns (or any other information relating to its Taxes which
it deems confidential) to the Borrower or any other Person.
SECTION 2.16 Security Interest. As security for the performance by
the Borrower of all the terms, covenants and agreements on the part of the
Borrower to be performed under this Agreement or any other Transaction Document,
including the punctual payment when due of all Borrower Obligations, the
Borrower hereby grants to the Administrative Agent, for the benefit of the
Secured Parties, a security interest in, all of the Borrower's right, title and
interest in and to the following (collectively, the "Collateral"):
(a) all Receivables, whether now owned and existing or hereafter
acquired or arising, together with all Related Security and Collections with
respect thereto;
(b) [Reserved];
(c) the Originator Purchase Agreement, the Transfer Agreement, the
Servicing Agreement, the Performance Guaranty, the Credit Default Swaps and the
Control Agreements (collectively, the "Collateral Agreements"), including,
without limitation, (i) all rights of the Borrower to receive moneys due or to
become due under or pursuant to the Collateral Agreements, (ii) all security
interests and property subject thereto from time to time purporting to secure
payment of monies due or to become due under or pursuant to the Collateral
Agreements, (iii) all rights of the Borrower to receive proceeds of any
insurance, indemnity, warranty or guaranty with respect to the Collateral
Agreements, (iv) all claims of the Borrower for damages arising out of or for
breach of or default under the Collateral Agreements, and (v) the right to
compel performance and otherwise exercise all remedies and enforce all rights
under the Collateral Agreements;
(d) the Collection Accounts, the Concentration Account, any Credit
Default Collateral Accounts (as defined in the Transfer Agreement), the Credit
Default Premium Reserve Account and the Collateral Account, including, without
limitation, (i) all funds and other evidences of payment held therein and all
certificates and instruments, if any, from time to time representing or
evidencing any of such accounts or any funds and other evidences of payment
48
held therein, (ii) all investment property and other financial assets
held in, or acquired with funds from, such accounts and all certificates and
instruments from time to time representing or evidencing such investment
property and financial assets, (iii) all notes, certificates of deposit and
other instruments from time to time hereafter delivered in substitution for any
of the then existing accounts and (iv) all interest, dividends, cash,
instruments, financial assets, investment property and other property from time
to time received, receivable or otherwise distributed in respect of or in
exchange for any and all of such accounts;
(e) all other assets of the Borrower, whether now owned and existing
or hereafter acquired or arising, including, without limitation, all accounts,
chattel paper, goods, equipment, inventory, instruments, investment property,
deposit accounts and general intangibles (as those terms are defined in the UCC
as in effect on the date hereof in the State of New York) in which the Borrower
has any interest; and
(f) to the extent not included in the foregoing, all Proceeds of any
and all of the foregoing.
SECTION 2.17 [Reserved].
SECTION 2.18 [Reserved].
SECTION 2.19 Mitigation Obligations; Replacement of Lenders.
(a) If any Committed Lender requests compensation under Section
2.14, or if the Borrower is required to pay any additional amount to any
Committed Lender or any Official Body for the account of any Committed Lender
pursuant to Section 2.15, then such Committed Lender shall use reasonable
efforts to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or Affiliates, if, in the reasonable judgment of such
Committed Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.15, as applicable, in the future
and (ii) would not subject such Committed Lender or its related Conduit Lender
to any material unreimbursed cost or expense and would not otherwise be
disadvantageous to such Committed Lender or its related Conduit Lender in any
material respect. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Committed Lender in connection with any such
designation or assignment.
(b) If any Lender in a Lender Group requests compensation under
Section 2.14, or if the Borrower is required to pay any additional amount to
such Lender or any Official Body for the account of such Lender pursuant to
Section 2.15, or if such Lender is a Defaulting Lender, then the Borrower may,
at its sole expense and effort, upon notice to such Lender, the related Funding
Agent and the Administrative Agent, (i) if such Lender is a Committed Lender,
require such Lender to assign and delegate, without recourse (in accordance with
and subject to the restrictions contained in Section 11.03), all its interests,
rights and obligations under this Agreement to an Eligible Assignee acceptable
to the related Funding Agent that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment) or (ii) require all
Lenders in such Lender Group to assign and delegate, without recourse (in
accordance with an subject to the restrictions contained in Section 11.03), all
their interests,
49
rights and obligations under this Agreement to assignees selected by the
Borrower; provided that, in each case of clauses (i) and (ii), that (x) the
Borrower shall have received the prior written consent of the Administrative
Agent, which consent shall not unreasonably be withheld, (y) the assigning
Lender(s) shall have received payment of an amount equal to the aggregate
outstanding Principal Balance of their respective Loans, accrued Interest
thereon through the last day of the Tranche Periods therefor, accrued Fees and
all other amounts payable to them hereunder, from the assignee (to the extent of
such outstanding Principal Balance and accrued Interest and Fees) or the
Borrower (in the case of all other amounts) and (z) in the case of any such
assignment resulting from a claim for compensation under Section 2.14 or
payments required to be made pursuant to Section 2.15, such assignment will
result in a reduction in such compensation or payments. Nothing in this Section
2.19 shall be deemed to prejudice any rights that the Borrower may have against
any Committed Lender that is a Defaulting Lender.
ARTICLE III CONDITIONS OF BORROWINGS
SECTION 3.01 Conditions Precedent to the Amendment Effective Date.
The effectiveness of this Agreement is subject to the conditions precedent that:
(i) all Fees required to be paid on or prior to the Amendment
Effective Date in accordance with the Fee Letters shall have been
paid in full in accordance with the terms thereof;
(ii) to the extent required by the program documents governing
any Conduit Lender's Commercial Paper program, each Rating Agency
shall have confirmed that the execution and delivery of this
Agreement by such Conduit Lender will not result in the reduction or
withdrawal of the then-current ratings of such Conduit Lender's
Commercial Paper; and
(iii) the Administrative Agent shall have received on or
before the date hereof all of the instruments, documents,
agreements, certificates and opinions specified on Schedule IV or
that the Administrative Agent or any Funding Agent may otherwise
reasonably request, each (unless otherwise indicated) dated such
date, in form and substance satisfactory to the Administrative Agent
and each Funding Agent.
SECTION 3.02 Conditions Precedent to All Borrowings. Each Borrowing
(including, without limitation, the initial Borrowing) and each Release
hereunder shall be subject to the further conditions precedent that (a) the
Collection Agent shall have delivered to the Administrative Agent and each
Funding Agent all Portfolio Reports required to be delivered under the Servicing
Agreement, each duly completed and containing information covering the most
recently ended reporting period for which information is required pursuant to
Section 2.3 of the Servicing Agreement, (b) on the date of such Borrowing or
Release the following statements shall be true (and acceptance of the proceeds
of any such Borrowing or Release shall be deemed a representation and warranty
by the Borrower that such statements are then true):
(i) The representations and warranties contained in Section
4.01 are correct on and as of the date of such Borrowing or Release
as though made on and
50
as of such date, except that the representations and warranties set
forth in Sections 4.01(e), (f) and (q)(i) shall be required to be
true and correct only as of each Borrowing Date and each Reporting
Date,
(ii) No event has occurred and is continuing, or would result
from such Borrowing or Release, that constitutes a Termination
Event, an Involuntary Bankruptcy Event or, in the case of a
Borrowing, an Incipient Termination Event, and
(iii) Each Originator shall have sold to the Transferor
pursuant to the Originator Purchase Agreement, all Receivables that
arose on or prior to the immediately preceding Business Day, and the
Transferor shall have sold to the Borrower all Receivables so sold
to it; and
(c) The Administrative Agent and each Funding Agent shall have
received such other approvals, opinions or documents as it may reasonably
request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Borrower. The
Borrower hereby represents and warrants as follows as of the date hereof and as
of the date of each Borrowing and each Release hereunder and as of each
Reporting Date (except that the representations and warranties set forth in
paragraphs (e), (f) and (q)(i) below shall be made solely on the date of each
Borrowing and each Reporting Date):
(a) The Borrower is a limited liability company duly formed, validly
existing and in good standing under the laws of Delaware, and is duly qualified
to do business, and is in good standing, in every jurisdiction where the nature
of its business requires it to be so qualified, unless the failure to so qualify
would not reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by the Borrower of the
Transaction Documents, including the Borrower's use of the proceeds of Loans,
(i) are within the Borrower's limited liability company powers, (ii) have been
duly authorized by all necessary limited liability company action, (iii) do not
contravene (A) the Borrower's certificate of formation or limited liability
company agreement, (B) any law, rule or regulation applicable to the Borrower,
(C) any contractual restriction binding on or affecting the Borrower or its
property or (D) any order, writ, judgment, award, injunction or decree binding
on or affecting the Borrower or its property, where any such contravention
described in this clause (iii) could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, and (iv) do not
result in or require the creation of any Adverse Claim upon or with respect to
any of its properties (except as created pursuant to the Transaction Documents).
Each of the Transaction Documents has been duly executed and delivered by the
Borrower.
(c) No authorization or approval or other action by, and no notice
to or filing with, any Official Body is required for the due execution, delivery
and performance by the
51
Borrower of the Transaction Documents to which it is a party or any other
document to be delivered thereunder, except for the filing of UCC financing
statements referred to on Schedule IV.
(d) Each of the Transaction Documents to which the Borrower is a
party constitutes the legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms, subject to the
effects of (i) bankruptcy, insolvency, moratorium, reorganization or other
similar laws affecting the enforcement of creditors' rights generally, (ii)
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law and (iii) implied covenants of
good faith and fair dealing.
(e) Since December 31, 2003 there has been no event or circumstance
which has had or that is reasonably likely to have a Material Adverse Effect.
(f) As of each Borrowing Date and Reporting Date, there are no
actions, suits or proceedings at law or in equity or by or before any Official
Body or in arbitration, to the actual knowledge of a Responsible Officer of the
Borrower, threatened in writing against or affecting the Borrower or any of its
business, property or rights which in either case, (i) involve the Transaction
Documents or the Transactions (as defined in the Senior Credit Agreement as in
effect on the date hereof) or (ii) as to which an adverse determination is
reasonably probable and which could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect or materially and adversely
effect the Transactions. The Borrower is not in default of any order of any
Official Body where such default could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(g) No proceeds of any Borrowing will be used to purchase or carry,
or to extend credit to others for the purpose of purchasing or carrying, "margin
stock" within the meaning of Regulation T, U or X promulgated by the Board of
Governors of the Federal Reserve System from time to time.
(h) Each Receivable treated as or represented to be a Pool
Receivable is owned by the Borrower free and clear of any Adverse Claim (other
than Permitted Adverse Claims). The Administrative Agent, for the benefit of the
Secured Parties, has a valid and perfected first priority security interest in
each Pool Receivable now existing or hereafter arising and in the Related
Security and Collections with respect thereto and all other Collateral, in each
case free and clear of any Adverse Claim (other than Permitted Adverse Claims).
No effective financing statement or other instrument similar in effect is filed
in any recording office listing the Borrower, the Transferor or any Originator
as debtor, covering any Pool Receivable, Related Security or other Collateral
except such as (i) may be filed in favor of the Administrative Agent in
accordance with this Agreement and (ii) as may be filed in favor of the Borrower
or the Transferor and assigned to the Administrative Agent in accordance with
this Agreement and the Transfer Agreement.
(i) Each Portfolio Report (if prepared by any Transaction Party or
one of their respective Affiliates, or to the extent that information contained
therein is supplied by any Transaction Party or an Affiliate), information,
exhibit, document, book, record or report
52
furnished in writing at any time by or on behalf of any Transaction Party to the
Administrative Agent, any Funding Agent or any Lender in connection with this
Agreement is accurate in all material respects as of its date or (except as
otherwise disclosed to the Administrative Agent, such Funding Agent or such
Lender, as the case may be, at such time) as of the date so furnished. The
Information Memorandum is accurate in all material respects as of its date and
does not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein, in
the light of the circumstances under which they were made, not misleading. All
financial statements and other financial data which have been or shall hereafter
be furnished by any Transaction Party fairly present, and will fairly present,
in all material respects, the financial condition of the applicable Transaction
Party and its consolidated subsidiaries as of the dates set forth therein and
the results of operations of such Transaction Party and its consolidated
subsidiaries for the periods ended on such dates.
(j) The Borrower is located in the State of Delaware for the
purposes of Section 9-307 of the UCC as in effect in the State of New York.
(k) The names and addresses of all the Collection Account Banks and
the Concentration Account Bank together with the account numbers of the
Collection Accounts and the Concentration Account at such Collection Account
Banks and the Concentration Account Bank are as specified in Schedule V hereto,
as such Schedule V may be updated from time to time pursuant to Section 5.01(g).
(l) Since its formation, the Borrower has not used any company name,
tradename or doing-business-as name other than the name in which it has executed
this Agreement. The Borrower's Federal Employer Identification Number is
▇▇-▇▇▇▇▇▇▇.
(m) The Borrower was formed on February 20, 2003 and the Borrower
did not engage in any business activities prior to the date of the Existing Loan
Agreement. The Borrower has no Subsidiaries. The Transferor directly owns 100%
of the membership interests of the Borrower, free and clear of any Adverse
Claims.
(n) The Borrower is not an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940, as amended.
(o) (i) The fair value of the assets of the Borrower, at a fair
valuation, exceed the debts and liabilities, direct, subordinated, contingent or
otherwise, of the Borrower; (ii) the present fair saleable value of the property
of the Borrower is greater than the amount that will be required to pay the
probable liabilities of the Borrower on its debts and other liabilities, direct,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (iii) the Borrower will be able to pay its debts
and liabilities, direct, subordinated, contingent or otherwise, as such debts
and liabilities become absolute and matured; and (iv) the Borrower will not have
unreasonably small capital with which to conduct the businesses in which it is
engaged as such business is now conducted and is proposed to be conducted
following the Closing Date. The Borrower does not intend to, and does not
believe that it will, incur debts or liabilities beyond its ability to pay such
debts and liabilities as they mature, taking into account the timing and amounts
of cash to be received by it and the timing and amounts of cash to be payable on
or in respect of its Indebtedness.
53
(p) With respect to each Receivable treated as or represented to be
a Pool Receivable, the Transferor purchased such Receivable from the applicable
Originator in exchange for payment (made by the Transferor to such Originator in
accordance with the provisions of the Originator Purchase Agreement) of cash, an
addition to the principal amount of the Intercompany Note, or a combination
thereof in an amount which constitutes fair consideration and reasonably
equivalent value. With respect to each Receivable acquired by the Borrower from
the Transferor, such Receivable has been acquired by the Borrower from the
Transferor in accordance with the terms of the Transfer Agreement. Each such
purchase referred to above shall not have been made for or on account of an
antecedent debt owed by the applicable Originator to the Transferor, or by the
Transferor to the Borrower, as the case may be, and no such sale is or may be
voidable or subject to avoidance under any section of the United States
Bankruptcy Code or any other Law, whether foreign or domestic.
(q) (i) The Borrower and its ERISA Affiliates are in compliance with
the applicable provisions of ERISA and the provisions of the IRC relating to
Plans and the regulations and published interpretations thereunder and any
similar applicable non-U.S. law, except for such noncompliance that could not
reasonably be expected to have a Material Adverse Effect. No Reportable Event
has occurred during the past five years as to which the Borrower or any ERISA
Affiliate was required to file a report with the PBGC, other than reports that
have been filed and reports the failure of which to file could not reasonably be
expected to have a Material Adverse Effect. As of the Amendment Effective Date,
the present value of all benefit liabilities under each Plan of the Borrower and
the ERISA Affiliates (based on those assumptions used to fund such Plan), as of
the last annual valuation date applicable thereto for which a valuation is
available, did not exceed the value of the assets of such Plan by an amount that
could reasonably be expected to have a Material Adverse Effect, and the present
value of all benefit liabilities of all underfunded Plans (based on those
assumptions used to fund each such Plan), as of the last annual valuation dates
applicable thereto for which valuations are available, did not exceed the value
of the assets of all such underfunded Plans by an amount that could reasonably
be expected to have a Material Adverse Effect. None of the Borrower and the
ERISA Affiliates has incurred or could reasonably be expected to incur any
Withdrawal Liability that could reasonably be expected to have a Material
Adverse Effect. None of the Borrower and the ERISA Affiliates has received any
written notification that any Multiemployer Plan is in reorganization or has
been terminated within the meaning of Title IV of ERISA, or has knowledge that
any Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated, where such reorganization or termination has had or could reasonably
be expected to have, through increases in the contributions required to be made
to such Plan or otherwise, a Material Adverse Effect. (ii) No Adverse Claim
exists in favor of the Pension Benefit Guaranty Corporation on any of the
Collateral.
(r) Each Receivable included in the calculation of the Net
Receivables Balance on any date shall be an Eligible Receivable as of such date.
(s) No event has occurred and is continuing and no condition exists
which constitutes a Termination Event.
54
ARTICLE V
COVENANTS
SECTION 5.01 Covenants of the Borrower. Until the Final Payout Date:
(a) Compliance with Laws, Etc. The Borrower will comply in all
respects with all applicable Laws and preserve and maintain its limited
liability company existence, rights, franchises, qualifications, and privileges
except to the extent that the failure so to comply with such Laws or the failure
so to preserve and maintain such rights, franchises, qualifications, and
privileges would not reasonably be expected to have a Material Adverse Effect.
(b) Offices, Records and Books of Account. The Borrower will keep
its office where it keeps its records concerning the Pool Receivables at (i) the
address of the Borrower specified in Section 11.02 as of the date of this
Agreement or (ii) upon 30 days' prior written notice to the Administrative Agent
and each Funding Agent, at any other locations in jurisdictions where all
actions reasonably requested by the Administrative Agent to protect and perfect
its security interest in the Collateral have been taken and completed. The
Borrower also will maintain and implement administrative and operating
procedures (including, without limitation, an ability to recreate records
evidencing Pool Receivables and related Contracts in the event of the
destruction of the originals thereof), and keep and maintain all documents,
books, records and other information reasonably necessary or advisable for the
collection of all Pool Receivables (including, without limitation, records
adequate to permit the daily identification of each Pool Receivable and all
Collections of and adjustments to each existing Pool Receivable).
(c) Performance and Compliance with Contracts and Credit and
Collection Policy. The Borrower will, at its expense, (i) timely and fully
perform and comply in all material respects with all provisions, covenants and
other promises (if any) required to be observed by it under the Contracts
related to the Pool Receivables in the same manner as if this Agreement did not
exist and (ii) timely and fully comply in all material respects with the Credit
and Collection Policy (as amended from time to time in accordance with the terms
hereof).
(d) Sales, Liens, Etc. The Borrower will not sell, assign (by
operation of law or otherwise) or otherwise dispose of, or create or suffer to
exist any Adverse Claim (except for Permitted Adverse Claims) upon or with
respect to, any Collateral or any other asset of the Borrower, or assign any
right to receive income in respect thereof. Nothing in this Section 5.01(d)
shall prevent the Borrower from making Restricted Payments otherwise permitted
under Section 5.01(o).
(e) Extension or Amendment of Receivables and Contracts. Except as
provided in Section 2.2(c) of the Servicing Agreement, the Borrower will not
extend, amend or otherwise modify the terms of any Pool Receivable or amend,
modify or waive any term or condition of any Contract related thereto in a
manner that could reasonably be expected to adversely affect the collectibility
of such Pool Receivable.
(f) Change in Business or Credit and Collection Policy. The Borrower
will not make any change in the character of its business or in the Credit and
Collection Policy,
55
except for any such change in a Credit and Collection Policy that would not (i)
impair the collectibility of any Pool Receivables in any material respect or
(ii) otherwise be reasonably likely to have a Material Adverse Effect.
(g) Change in Payment Instructions to Obligors. The Borrower will
not add or terminate any Collection Account or the Concentration Account from
those listed in Schedule V to this Agreement, or make any change in its
instructions to Obligors regarding payments to be made in respect of the
Receivables or payments to be made to any Collection Account or the
Concentration Account, unless the Administrative Agent and each Funding Agent
shall have received notice of such addition, termination or change (including an
updated Schedule V) and a fully executed Control Agreement with respect to each
new Collection Account and each new Concentration Account; provided that, the
Collection Account (Lockbox No. 98912; Acct. No. 8188102974) maintained with
Bank of America may be terminated so long as the relevant Obligors are
instructed to make payments to another Collection Account. Each Collection
Account and Concentration Account shall be maintained at all times in the name
of the Transferor.
(h) Deposits to Collection Accounts and Concentration Account. The
Borrower will cause all Obligors to be instructed to remit all their payments in
respect of Receivables to a Collection Account (either directly by wire transfer
or electronic funds transfer or by check mailed to a lock-box maintained by the
relevant Collection Account Bank). If the Borrower shall receive any Collections
directly, the Borrower shall promptly (and in any event within one Business Day)
cause such Collections to be deposited into a Collection Account or the
Concentration Account. The Borrower will use its reasonable best efforts to
prevent funds which do not constitute Collections of Receivables from being
deposited into any Collection Account or the Concentration Account. The Borrower
shall cause each Collection Account Bank to be instructed to remit funds on
deposit in each Collection Account to the Concentration Account on a daily
basis.
(i) Further Assurances; Change in Name or Jurisdiction of
Organization, etc.
(A) The Borrower agrees from time to time, at its expense,
promptly to execute and deliver all further instruments and
documents, and to take all further actions, that may be necessary or
desirable, or that the Administrative Agent may reasonably request,
to perfect, protect or more fully evidence the Administrative
Agent's security interest in the Collateral, or to enable the
Conduit Lenders, the Committed Lenders, the Funding Agents or the
Administrative Agent to exercise and enforce their respective rights
and remedies under this Agreement. Without limiting the foregoing,
the Borrower will, upon the request of the Administrative Agent,
execute and file such financing or continuation statements, or
amendments thereto, and such other instruments and documents, that
may be necessary or desirable, or that the Administrative Agent may
reasonably request, to perfect, protect or evidence the
Administrative Agent's security interest in the Collateral.
(B) The Borrower authorizes the Administrative Agent to file
financing or continuation statements, and amendments thereto and
assignments thereof, relating to the Collateral without the
signature of the Borrower. A
56
photocopy or other reproduction of this Agreement shall be
sufficient as a financing statement where permitted by law.
(C) The Borrower will at all times be organized under the laws
of the State of Delaware and will not take any action to change its
jurisdiction of organization.
(D) The Borrower will not change its name, identity, limited
liability company structure or tax identification number unless the
Administrative Agent shall have received at least thirty (30) days
advance written notice of such change and all action by the Borrower
necessary or appropriate to perfect or maintain the perfection of
the Administrative Agent's security interest in the Collateral
(including, without limitation, the filing of all financing
statements and the taking of such other action as the Administrative
Agent may request in connection with such change) shall have been
duly taken.
(j) Reporting Requirements. The Borrower will cause to be provided
to the Administrative Agent and each Funding Agent the following:
(i) Annual Financial Statements: As soon as available, but in
any event within 90 days after the close of each of the Borrower's
fiscal years, a copy of the unaudited balance sheet of the Borrower
as at the end of such year, in each case, together with the related
statements of income and retained earnings and of cash flows of the
Borrower for such year, setting forth in each case in comparative
form the figures for the previous year, certified by its chief
financial officer as having been prepared in accordance with GAAP;
(ii) Quarterly Financial Statements. As soon as available, but
in any event not later than 45 days after the end of each of the
first three quarterly periods of each fiscal year of the Borrower,
unaudited balance sheets for the Borrower as at the close of each
such period and related statements of income, shareholders' equity
and cash flows in each case for the period from the beginning of
such fiscal year to the end of such quarter, in each case certified
by its chief financial officer as having been prepared in accordance
with GAAP;
(iii) Compliance Certificate. At the time of the delivery of
the financial statements provided for in clause (i) or clause (ii)
of this Section 5.01(j) of the Borrower, a certificate of a
Financial Officer of the Borrower, to the effect that, to the best
of such officer's knowledge, no Termination Event or Incipient
Termination Event has occurred and is continuing or, if any
Termination Event or Incipient Termination Event has occurred and is
continuing, specifying the nature and extent thereof;
(iv) Termination Event and Incipient Termination Event. As
soon as possible and in any event within one Business Day after a
Responsible Officer of the Borrower obtains actual knowledge of the
occurrence of any Termination Event or Incipient Termination Event,
a statement of a Financial Officer of the
57
Borrower setting forth details of such Termination Event or
Incipient Termination Event and the action that the Borrower has
taken and proposes to take with respect thereto;
(v) ERISA. Promptly after a Responsible Officer of the
Borrower obtains actual knowledge thereof, the occurrence of any
ERISA Event, that together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of
Holdings, Intermediate Holdings, the Parent Guarantor, their
respective Subsidiaries and their respective ERISA Affiliates in an
aggregate amount in excess of $60,000,000;
(vi) Change in Name, Etc. At least thirty days prior to any
change in the name, jurisdiction of organization, corporate
structure or tax identification number of any Transaction Party, a
notice setting forth the new name, jurisdiction of organization,
corporate structure or tax identification number, as applicable, and
the effective date thereof;
(vii) Termination or Suspension of Sale by Originators. As
soon as possible and in any event within one Business Day of
occurrence thereof, notice that any Originator has stopped selling
or contributing to the Transferor all newly arising Receivables
originated by such Originator pursuant to the Originator Purchase
Agreement;
(viii) Notices under Transaction Documents. Promptly after
receipt thereof, copies of all notices received by the Borrower from
any Originator, the Transferor or any counterparty under a Credit
Default Swap in connection with any Collateral Agreements;
(ix) Litigation; Material Adverse Effect. Promptly after a
Responsible Officer of the Borrower obtains actual knowledge
thereof, notice of (i) the filing or commencement of, or any written
threat or notice of intention of any Person to file or commence, any
action, suit or proceeding, whether at law or in equity or by or
before any Official Body or in arbitration against the Borrower or
the Transferor and (ii) any other event or condition that is not a
matter of general public knowledge and that has had, or could
reasonably be expected to have, a Material Adverse Effect; and
(x) Other Information. Such other information respecting the
Collateral or the condition or operations, financial or otherwise,
of any Transaction Party other than the Parent Guarantor (including,
without limitation, information regarding any pending or threatened
litigation) as the Administrative Agent or any Funding Agent may
from time to time reasonably request.
(k) Separateness.
(i) The Borrower will at all times have at least one "manager"
(as defined in the Borrower's limited liability agreement as in
effect on the Closing Date) who will be (x) a natural person and (y)
a Person who (A) shall not have
58
been at the time of such Person's appointment, and may not have been
at any time during the preceding five years and shall not be as long
as such Person is a manager of the Borrower (i) a director, member,
officer, manager, partner, shareholder or employee of the Parent
Guarantor, any Originator or any of their respective directors,
members, partners, Subsidiaries, shareholders or Affiliates other
than the Borrower and the Transferor (collectively, the "Independent
Parties"), (ii) a supplier to any of the Independent Parties, (iii)
a person controlling or under common control with any directors,
members, partners, shareholder or supplier of any of the Independent
Parties or (iv) a member of the immediate family of any director,
member, partner, shareholder, officer, manager, employee or supplier
of the Independent Parties, (B) has prior experience as an
independent director for a corporation or limited liability company
whose charter documents required the unanimous consent of all
independent directors thereof before such corporation or limited
liability company could consent to the institution of bankruptcy or
insolvency proceedings against it or could file a petition seeking
relief under any applicable federal or state law relating to
bankruptcy and (C) has at least three years of employment experience
with one or more entities that provide, in the ordinary course of
their respective businesses, advisory, management or placement
services to issuers of securitization or structured finance
instruments, agreements or securities.
(ii) The Borrower will at all times have sufficient personnel
and/or duly compensated agents to run its business and operations
and will compensate its employees (if any) and agents from its own
available funds for services provided to it. In the event employees
of the Borrower participate in pension, insurance and other benefit
plans of any Independent Party, the Borrower will on a current basis
reimburse such Independent Party for its pro rata share of the costs
thereof.
(iii) The Borrower will pay its own liabilities out of its own
funds and assets.
(iv) The Borrower will maintain a separate office (a) which if
leased from any Independent Party will be on terms no more or less
favorable to the Borrower than could be obtained in a comparable
arm's-length transaction with an unaffiliated Person and (b) which
will be conspicuously identified as the Borrower's office so it can
be easily located by outsiders. The Borrower will use its own
electronic mail address, stationery, invoices, checks and telephone
and facsimile numbers.
(v) The Borrower will hold itself out and identify itself as a
separate and distinct entity under its own name and not as a
division or part of any other Person.
(vi) The Borrower will promptly correct any misunderstanding
of which it has knowledge regarding its separate existence and
identity.
59
(vii) The Borrower will prepare and maintain its own full and
complete books, records and financial statements separate from any
other Person. The Borrower's financial statements will comply with
generally accepted accounting principles.
(viii) The Borrower will maintain at least one bank account in
its own name.
(ix) All business transactions entered into by the Borrower
with any of its Affiliates will be on terms that are intrinsically
fair and not more or less favorable to the Borrower, as the case may
be, than terms and conditions available at the time to the Borrower
for comparable arm's-length transactions with unaffiliated Persons,
it being understood that the Transaction Documents satisfy the
provisions of this paragraph (ix).
(x) The Borrower will not assume or guarantee or become
obligated for debts of any Independent Party and no Independent
Party will assume or guarantee or become obligated for the debts of
the Borrower, other than as provided in the Transaction Documents.
The Borrower will not hold its credit out as being available to
satisfy the obligations of any other Persons.
(xi) The Borrower will not acquire obligations or securities
of any Independent Party. The Borrower will not make loans, advances
or otherwise extend credit to any Independent Party except as
expressly contemplated by the Originator Purchase Agreement and the
Transfer Agreement.
(xii) Except to the extent provided in the Transaction
Documents, the Borrower will not commingle any of its money or other
assets with the money or assets of any other entity. The Borrower
will ensure that its funds will be clearly traceable at each step in
any financial transaction.
(xiii) The Borrower will engage in transactions and conduct
all other business activities solely in its own name and through its
own authorized officers and agents and will present itself to the
public as a separate company. Except to the extent provided in the
Transaction Documents, no Independent Party will be appointed agent
of the Borrower.
(xiv) The Borrower will not engage in any transaction with any
of its Affiliates involving any intent to hinder, delay or defraud
any Person.
(xv) The Borrower will observe all limited liability company
formalities.
(xvi) The Borrower will 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 to (x) ensure that the assumptions and factual
recitations set forth in the Specified Bankruptcy Opinion Provisions
remain true and correct with respect to the
60
Borrower and (y) comply with those procedures described in such
provisions which are applicable to the Borrower.
(l) Collateral Agreements. Except as permitted under Section 5.01(x)
and Section 11.16, the Borrower will not terminate, amend, waive or modify, or
consent to any termination, amendment, waiver or modification of, any provision
of any Collateral Agreement or grant any other consent or other indulgence under
any Collateral Agreement, in each case without the prior written consent of the
Required Committed Lenders; provided that the consent of each Committed Lender
shall be required for any such amendment, waiver, modification, consent or other
indulgence that would (i) release any portion of the Collateral if a Termination
Event or Incipient Termination Event has occurred and is continuing or would
result therefrom or (ii) release the Parent Guarantor from its obligations under
the Performance Guaranty. The Borrower will perform all of its obligations under
the Collateral Agreements and will enforce the Collateral Agreements in
accordance with their respective terms. The Borrower will take all actions to
perfect and enforce its rights and interests (and the rights and interests of
the Administrative Agent and the Secured Parties as assignees of Borrower) under
the Collateral Agreements as the Administrative Agent or the Required Committed
Lenders may from time to time reasonably request, including, without limitation,
making claims to which it may be entitled under any indemnity, reimbursement or
similar provision contained in any Collateral Agreement.
(m) Nature of Business; No Subsidiaries. The Borrower will not
engage in any business other than the purchase of Receivables, Related Security
and Collections from the Originators and the other transactions contemplated by
this Agreement and the Collateral Agreements. The Borrower will not create or
form any Subsidiary.
(n) Mergers, Etc. The Borrower will not merge with or into or
consolidate with or into, or convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions), all or
substantially all of its assets (whether now owned or hereafter acquired) to, or
acquire all or substantially all of the assets or capital stock or other
ownership interest of, or enter into any joint venture or partnership agreement
with, any Person, other than as contemplated by this Agreement and the
Originator Purchase Agreement.
(o) Distributions, Etc. The Borrower will not (i) declare or make
any dividend payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any membership interests or other equity
interests in the Borrower, or return any capital to its members or other equity
holders as such, or purchase, retire, defease, redeem or otherwise acquire for
value or make any payment in respect of any membership interests or other equity
of the Borrower or any warrants, rights or options to acquire any membership
interests or other equity of the Borrower, now or hereafter outstanding, (ii)
prepay, purchase or redeem any Indebtedness (other than Indebtedness hereunder),
(iii) lend or advance any funds or (iv) repay any loans or advances to, for or
from any of its Affiliates (the amounts described in clauses (i) through (iv)
being referred to as "Restricted Payments"); provided, however, that, prior to
the Termination Date, the Borrower may declare and pay cash dividends to its
sole member, may make payments in respect of the Intercompany Note and may make
purchases under the Transfer Agreement so long as (i) the Percentage Factor does
not exceed the Maximum Percentage Factor, as determined by reference to the most
recent Portfolio Report delivered under the Servicing Agreement, and no other
Termination Event or Involuntary Bankruptcy Event shall
61
then exist or would occur as a result thereof and (ii) any such dividends are in
compliance with all applicable law including the Delaware Limited Liability
Company Act, and have been approved by all necessary and appropriate limited
liability company action of the Borrower and its board of directors.
(p) Indebtedness. The Borrower will not create, incur, guarantee,
assume or suffer to exist any Indebtedness or other liabilities, whether direct
or contingent, other than (i) as a result of the endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary
course of business, (ii) the incurrence of obligations under this Agreement,
(iii) the incurrence of other obligations pursuant to, and, as expressly
contemplated in, the Transaction Documents, and (iv) the incurrence of operating
expenses in the ordinary course of business.
(q) Limited Liability Company Agreement. The Borrower will not
amend, modify or delete (or permit any amendment, modification or deletion of)
(i) the definition of "Independent Director or "Special Member" in its limited
liability company agreement as in effect on the Closing Date or (ii) any other
provision of its limited liability company agreement as in effect on the Closing
Date if, pursuant to the terms thereof, such amendment, modification or deletion
requires the consent of the Independent Director or Special Member thereunder.
(r) Tangible Net Worth. The Borrower will maintain Tangible Net
Worth at all times equal to at least 15% of the Outstanding Balance of the Pool
Receivables at such time.
(s) Taxes. The Borrower will file all tax returns and reports
required by law to be filed by it and will promptly pay all taxes and
governmental charges at any time owing, except such as are being contested in
good faith by appropriate proceedings and for which appropriate reserves have
been established. The Borrower will pay when due any taxes payable in connection
with the Collateral, exclusive of taxes on or measured by income or gross
receipts of the Administrative Agent, the Funding Agents, the Conduit Lenders or
the Committed Lenders.
(t) Treatment as Sales. Except as required by GAAP, the Borrower
will not account for or treat (whether in financial statements or otherwise) the
transactions contemplated by the Transfer Agreement in any manner other than as
the sale and/or absolute conveyance of the Transferred Assets (as defined
therein) by the Transferor to the Borrower (except that, in accordance with
applicable tax principles, each transfer under the Transfer Agreement may be
ignored for tax purposes).
(u) Investments. The Borrower will not make any loans to, advances
to, investments in or otherwise acquire any capital stock or equity security of,
or any equity interest in, any other Person, except as provided in the
Transaction Documents.
(v) Control Agreements. The Borrower will cause all Collection
Accounts, and the Concentration Account to be subject at all times to a Control
Agreement duly executed by the Collection Agent, the Borrower, the
Administrative Agent and the applicable bank at which such account is
maintained.
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(w) Hedge Counterparties. If at any time a Hedge Counterparty ceases
to be an Eligible Counterparty, the Borrower will cause the Transferor to
replace such Hedge Counterparty with an Eligible Counterparty under each Credit
Default Swap to which such Hedge Counterparty is a party by no later than the
earlier of (i) the 30th day following the date on which such Hedge Counterparty
ceases to be an Eligible Counterparty or (ii) the fifth Business Day after such
date in the event that such Hedge Counterparty's short-term debt rating is
withdrawn by any Rating Agency or is downgraded below A-2 by S&P or below P-2 by
▇▇▇▇▇'▇. Each such replacement will be made pursuant to documentation in
substantially the form of Exhibit D or otherwise in form and substance
reasonably satisfactory to the Required Committed Lenders.
(x) Amendments to Credit Default Swaps. The Borrower will not, and
will not permit the Transferor to, supplement, amend, extend, replace, terminate
or otherwise modify any Credit Default Swap without the prior written consent of
the Administrative Agent, each Funding Agent and each Committed Lender, except
that no such consent will be required to (A) enter into an amendment solely to
reduce the Notional Amount under a Credit Default Swap or (B) extend or
terminate a Credit Default Swap; provided that prior to (and, in any event, at
least five Business Days before) reducing the Notional Amount of or terminating
such Credit Default Swap, either (1) the Collection Agent provides the
Administrative Agent, each Funding Agent and each Committed Lender with a
certificate (signed by a Responsible Officer of the Collection Agent) which
attaches a Weekly Report or Daily Report giving pro forma effect to any
reduction in the Net Receivables Balance resulting from the reduction or
termination of such Credit Default Swap and which certifies that, after giving
pro forma effect to the reduction or termination of such Credit Default Swap,
the Percentage Factor does not exceed the Maximum Percentage Factor, as
determined by reference to the most recent Portfolio Report delivered under the
Servicing Agreement or (2) the Transferor has posted cash collateral with
respect to its obligations under Section 2.09 of the Transfer Agreement in a
manner satisfactory to each Committed Lender and in an amount not less than the
Notional Amount of such Credit Default Swap that is being terminated or the
amount of the reduction of the Notional Amount thereof, as the case may, be or
if less than such amount, in an amount that is satisfactory to each Committed
Lender in accordance with the terms of the Transfer Agreement.
SECTION 5.02 Inspections; Annual Agreed Upon Procedures Audit. Until
the Final Payout Date:
(a) Each of the Borrower and the Collection Agent will, at their
respective expense, from time to time during regular business hours as requested
by the Administrative Agent and/or any Funding Agent upon reasonable prior
notice, permit the Administrative Agent, any Funding Agent, or their respective
agents or representatives (including independent public accountants, which may
be the Borrower's or the Collection Agent's independent public accountants), (i)
to conduct periodic audits of the Receivables, the Related Security, the other
Collateral and the related books and records and collections systems of the
Borrower or the Collection Agent, as the case may be, (ii) to examine and make
copies of and abstracts from all books, records and documents (including,
without limitation, computer tapes and disks) in the possession or under the
control of the Borrower or the Collection Agent, as the case may be, relating to
Receivables, the Related Security and the other Collateral, including, without
limitation, the Contracts, and (iii) to visit the offices and properties of the
Borrower or the
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Collection Agent, as the case may be, for the purpose of examining such
materials described in clause (ii) above, and to discuss matters relating to
Receivables, the Related Security and the other Collateral or the Borrower's or
the Collection Agent's performance under the Transaction Documents or under the
Contracts with any of the officers or employees of the Borrower or the
Collection Agent, as the case may be, having knowledge of such matters; provided
that, so long as no Termination Event or Involuntary Bankruptcy Event has
occurred and is continuing and the most recent Accountants' Letter delivered
pursuant to Section 5.02(b) does not identify any material discrepancies, the
Borrower and the Collection Agent shall be required to pay the expenses of no
more than two audits conducted by the Administrative Agent and the Funding
Agents during any single calendar year (such audits to be made on the dates
specified by the Administrative Agent in consultation with the Funding Agents).
(b) On or before March 31 of each year, beginning with March 31,
2005, the Collection Agent shall cause Ernst & Young LLP or another firm of
nationally recognized independent public accountants acceptable to the
Administrative Agent (who may also render other services to the Collection Agent
or its Affiliates) to furnish a report (addressed to the Administrative Agent
and each Funding Agent) to the Administrative Agent and each Funding Agent (each
such report, an "Accountants' Letter") in a form acceptable to the
Administrative Agent, to the effect that they have performed certain procedures
as reasonably requested by the Administrative Agent and the Funding Agents
(which, unless otherwise agreed by the Administrative Agent and each Funding
Agent, shall include the procedures identified on Exhibit E) and examined
certain documents and records relating to the Receivables and the servicing
thereof and have compared the information contained in certain of the Monthly
Reports delivered pursuant to this Agreement for the preceding twelve (12)
calendar month period with such documents and records and that, on the basis of
such procedures, have noted no instances where the amounts set forth in such
Monthly Reports are not in agreement with the Collection Agent's documents and
records, except for such exceptions as shall be set forth in such report. The
cost of any such Accountants' Letter shall be paid by the Collection Agent out
of its own funds.
ARTICLE VI
ADMINISTRATION AND COLLECTION
OF RECEIVABLES
SECTION 6.01 Designation of Collection Agent. The servicing,
administration and collection of the Pool Receivables shall be conducted by the
Collection Agent so designated under the Servicing Agreement from time to time.
SECTION 6.02 Certain Rights of the Administrative Agent.
(a) At any time following the occurrence of a Termination Event or
an Involuntary Bankruptcy Event, and at any other time that the Parent Guarantor
does not have a published Debt Rating of at least B by S&P and at least B2 by
▇▇▇▇▇'▇, the Administrative Agent may (and if so directed by the Required
Committed Lenders, shall) have each Collection Account and the Concentration
Account transferred into the name of the Administrative Agent for the benefit of
the Secured Parties and/or (if a Termination Event or Involuntary Bankruptcy
64
Event has occurred) assume exclusive control of the Collection Accounts and the
Concentration Account, and may take such actions to effect such transfer or
assumption as it may determine to be necessary or appropriate (including,
without limitation, delivering the notices attached to the Control Agreements).
(b) At any time following the occurrence of a Termination Event or
an Involuntary Bankruptcy Event:
(i) At the Administrative Agent's request (acting either on
its own initiative or at the request of the Required Committed
Lenders) and at the Borrower's expense, the Collection Agent shall
(and if the Collection Agent shall fail to do so within three
Business Days, the Administrative Agent may) notify each Obligor of
Receivables of the Administrative Agent's security interest therein
under this Agreement and direct that payments be made directly to
the Administrative Agent or its designee; provided that no such
notice may be delivered if the only Termination Event(s) that shall
have occurred are those set forth in 7.01(h), (k), (l) or (m).
(ii) At the Administrative Agent's request (acting either on
its own initiative or at the request of the Required Committed
Lenders) and at the Borrower's expense, the Borrower and the
Collection Agent shall (A) assemble all of the documents,
instruments and other records (including, without limitation,
computer tapes and disks) that evidence or relate to the Collateral,
or that are otherwise necessary or desirable to collect the
Collateral, and shall make the same available to the Administrative
Agent at a place selected by the Administrative Agent or its
designee, and (B) segregate all cash, checks and other instruments
received by it from time to time constituting Collections of
Collateral in a manner acceptable to the Administrative Agent and,
promptly upon receipt, remit all such cash, checks and instruments,
duly indorsed or with duly executed instruments of transfer, to the
Administrative Agent or its designee.
(c) The Borrower authorizes the Administrative Agent, and hereby
irrevocably appoints the Administrative Agent as its attorney-in-fact coupled
with an interest, with full power of substitution and with full authority in
place of the Borrower, following the occurrence and during the continuation of a
Termination Event or Involuntary Bankruptcy Event, to take any and all steps in
the Borrower's name and on behalf of the Borrower that are necessary or
desirable, in the determination of the Administrative Agent, to collect amounts
due under the Collateral, including, without limitation, (i) endorsing the
Borrower's, the Collection Agent's, the Transferor's or any Originator's name on
checks and other instruments representing Collections of Collateral, (ii)
enforcing the Receivables and the Related Security and the Collateral Agreements
including to ask, demand, collect, ▇▇▇ for, recover, compromise, receive and
give acquittance and receipts for moneys due and to become due under or in
connection with therewith and to file any claims or take any action or institute
any proceedings that the Administrative Agent (or such designee) may deem to be
necessary or desirable for the collection thereof or to enforce compliance with
the terms and conditions of, or to perform any obligations or enforce any rights
of the Borrower in respect of, the Receivables and the Related Security and the
Collateral Agreements; provided that no enforcement action of the type
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described in this clause (ii) may be taken by the Administrative Agent if no
Involuntary Bankruptcy Event then exists and the only Termination Event(s) that
shall have occurred are those set forth in 7.01(h), (k), (l) or (m).
SECTION 6.03 Performance of Obligations.
(a) If the Collection Agent or the Borrower fails to perform any of
its obligations under this Agreement or any other Transaction Document, the
Administrative Agent may (but shall not be required to) itself perform, or cause
performance of, such obligation; and the Administrative Agent's costs and
expenses reasonably incurred in connection therewith shall be payable by the
Collection Agent or the Borrower, as applicable.
(b) The Borrower and the Collection Agent shall perform their
respective obligations under the Contracts and the Collateral Agreements to the
same extent as if a security interest therein had not been granted to the
Administrative Agent and the exercise by the Administrative Agent on behalf of
the Secured Parties of their rights under this Agreement shall not release the
Collection Agent or the Borrower from any of their duties or obligations with
respect to any Contracts or Collateral Agreements. None of the Administrative
Agent, the Lenders or the Funding Agents shall have any obligation or liability
with respect to any Collateral Agreements or Contracts, nor shall any of them be
obligated to perform the obligations of any Transaction Party thereunder.
(c) The Administrative Agent's rights and powers under this Article
VI and under the Servicing Agreement shall not subject the Administrative Agent
to any liability if any action taken by it proves to be inadequate or invalid
(in the absence of gross negligence or willful misconduct on the part of the
Administrative Agent) nor shall such powers confer any obligation whatsoever
upon the Administrative Agent.
ARTICLE VII
TERMINATION EVENTS
SECTION 7.01 Termination Events. If any of the following events
(each an "Termination Event") shall occur and be continuing:
(a) any Transaction Party shall fail to make any payment or deposit
required to be made by it hereunder or under any of the Transaction Documents
when due hereunder or thereunder and such failure remains unremedied for one
Business Day; or
(b) any representation, warranty, certification or statement made by
any Transaction Party in this Agreement, any other Transaction Document to which
it is a party or in any other document delivered pursuant hereto or thereto
(excluding any representation or warranty made pursuant to Section 4.01(s) of
this Agreement or Section 3.1(i) of the Servicing Agreement) shall prove to have
been incorrect in any material respect when made or deemed made, other than any
breach of a representation relating to a Receivable that has been repurchased
pursuant to Section 2.03 of the Originator Purchase Agreement; or
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(c) any Transaction Party shall fail to perform or observe (i) any
term, covenant or agreement contained in Section 5.01(a) (as to maintenance of
existence only), 5.01(d) or 5.01(n) of this Agreement or (ii) any other term,
covenant or agreement contained in this Agreement or any other Transaction
Document on its part to be performed or observed and, solely in the case of this
clause (ii), such failure shall remain unremedied for ten days after a
Responsible Officer of such Transaction Party has actual knowledge or receives
written notice thereof; or
(d) any event or condition occurs that (i) results in any Material
Indebtedness becoming due prior to its scheduled maturity or (ii) enables or
permits (with all applicable grace periods having expired) the holder or holders
of any Material Indebtedness or any trustee or agent on its or their behalf to
cause any Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (d) shall not apply to secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness if such sale or transfer is permitted
hereunder and under the documents providing for such Indebtedness; or
(e) any Event of Bankruptcy shall occur with respect to any
Transaction Party; or
(f) the Administrative Agent, on behalf of the Conduit Lenders and
the Committed Lenders, shall, for any reason, fail or cease to have a valid and
perfected first priority security interest in the Collateral; or
(g) a Collection Agent Default shall occur; or
(h) any Change of Control shall occur; or
(i) there shall have occurred since December 31, 2003 any event or
condition which has had or could reasonably be expected to have a material
adverse effect on (A) the validity, enforceability or collectibility of the
Receivables taken as a whole or (B) the ability of any Transaction Party to
perform its obligations under the Transaction Documents; or
(j) the Percentage Factor exceeds the Maximum Percentage Factor, as
determined by reference to the most recent Portfolio Report delivered under the
Servicing Agreement, and such circumstance remains unremedied for three
consecutive Business Days; or
(k) the average Dilution Ratio for any three consecutive Calculation
Periods exceeds (i) in the case of any such period that includes sales from the
month of July (for the avoidance of doubt such periods include the August,
September and October Calculation Periods) or December (for the avoidance of
doubt such periods include January, February and March Calculation Periods),
5.0% or (ii) in the case of any other period, 4.80%; provided that the existence
of such circumstance shall not constitute a "Termination Event" hereunder if (x)
the last such Calculation Period ends on or before the date on which the initial
public offering of the shares of common stock of TRW Automotive Holdings Corp.
is consummated and (y) no Loans shall have been outstanding as of the last day
of such Calculation Period or at any time thereafter until the first Monthly
Reporting Date on which the Funding Agents receive a Monthly Report
demonstrating that such circumstance no longer exists; or
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(l) the average Default Ratio for any three consecutive Calculation
Periods exceeds 1.30%; or
(m) the average Delinquency Ratio for any three consecutive
Calculation Periods exceeds 4.30%; or
(n) any Transaction Party receives notice or becomes aware that a
notice of lien has been filed against any Transaction Party under Section 412(n)
of the IRC or Section 302(f) of ERISA for a failure to make a required
installment or other payment to a plan to which Section 412(n) of the IRC or
Section 302(f) of ERISA applies; or
(o) a "Termination Event" shall occur under (and as defined in) the
Originator Purchase Agreement or a "Termination Event" shall occur under (and as
defined in) the Transfer Agreement or the "Termination Date" or any "Non-Payment
Event" shall occur under (and as defined in) the Originator Purchase Agreement;
or
(p) the failure by any Transaction Party to pay one or more final
judgments aggregating in excess of $40,000,000 (or, in the case of the Borrower
or the Transferor, $25,000), which judgments are not discharged or effectively
waived or stayed for a period of 30 consecutive days, or any action shall be
legally taken by a judgment creditor to levy upon assets or properties of any
Transaction Party to enforce any such judgment; or
(q) any Financial Covenant Default shall occur; or
(r) any of this Agreement, the Originator Purchase Agreement, the
Transfer Agreement, the Servicing Agreement or the Performance Guaranty shall
cease, for any reason, to be in full force and effect, or any Transaction Party
shall so assert in writing or any Transaction Party shall otherwise seek to
terminate or disaffirm its obligations under any such Transaction Document;
then, and in any such event, the Administrative Agent may, in its discretion,
and shall, at the direction of the Required Committed Lenders, declare the
Termination Date to have occurred upon notice to the Borrower (in which case the
Termination Date shall be deemed to have occurred); provided that automatically
upon the occurrence of any event (without any requirement for the giving of
notice) described in paragraph (e) of this Section 7.01, the Termination Date
shall occur. Upon any such declaration or upon such automatic termination, the
Lenders, the Funding Agents and the Administrative Agent shall have, in addition
to the rights and remedies which they may have under this Agreement, all other
rights and remedies provided after default under the UCC and under other
applicable law, which rights and remedies shall be cumulative.
SECTION 7.02 Acceleration of Maturity. If a Termination Event shall
have occurred and be continuing, then and in every such case the Administrative
Agent may, and if so directed by the Required Committed Lenders shall, declare
all of the Loans to be immediately due and payable by a notice in writing to the
Borrower, and upon any such declaration the unpaid principal amount of the
Loans, together with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable; provided
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that in the case of any event described in Section 7.01(e), the Loans shall
become immediately and automatically due and payable, without notice of any kind
being given to the Borrower.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01 Authorization and Action. Each Lender hereby appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. The Administrative Agent shall not have any
duties other than those expressly set forth in the Transaction Documents, and no
implied obligations or liabilities shall be read into any Transaction Document,
or otherwise exist, against the Administrative Agent. The Administrative Agent
does not assume, nor shall it be deemed to have assumed, any obligation to, or
relationship of trust or agency with, any Transaction Party, the Conduit
Lenders, the Committed Lenders or the Funding Agents. Notwithstanding any
provision of this Agreement or any other Transaction Document, in no event shall
the Administrative Agent ever be required to take any action which exposes the
Administrative Agent to personal liability or which is contrary to any provision
of any Transaction Document or applicable law.
SECTION 8.02 Agent's Reliance, Etc. Neither the Administrative Agent
nor any of its directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them as Administrative Agent under
or in connection with this Agreement (including, without limitation, the
Administrative Agent's servicing, administering or collecting Receivables as
Collection Agent), in the absence of its or their own gross negligence or
willful misconduct. Without limiting the generality of the foregoing, the
Administrative Agent: (a) may consult with legal counsel (including counsel for
the Borrower or the Collection Agent), independent certified public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (b) makes no warranty or representation to any
Funding Agent, Conduit Lender or Committed Lender (whether written or oral) and
shall not be responsible to any Funding Agent, Conduit Lender or Committed
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement or any other Transaction
Document; (c) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement or any other Transaction Document on the part of any Transaction Party
or to inspect the property (including the books and records) of any Transaction
Party; (d) shall not be responsible to any Funding Agent, Conduit Lender or
Committed Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other Transaction
Document; and (e) shall incur no liability under or in respect of this Agreement
or any other Transaction Document by acting upon any notice (including notice by
telephone), consent, certificate or other instrument or writing (which may be by
telecopier) believed by it in good faith to be genuine and signed or sent by the
proper party or parties.
SECTION 8.03 JPMorgan Chase and Affiliates. The obligation of
JPMorgan Chase to fund Loans under this Agreement may be satisfied by JPMorgan
Chase or
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any of its Affiliates. With respect to any Loan or interest therein owned by it,
JPMorgan Chase shall have the same rights and powers under this Agreement as any
Committed Lender and may exercise the same as though it were not the
Administrative Agent. JPMorgan Chase and any of its Affiliates may generally
engage in any kind of business with the Transaction Parties or any Obligor, any
of their respective Affiliates and any Person who may do business with or own
securities of the Transaction Parties or any Obligor or any of their respective
Affiliates, all as if JPMorgan Chase were not the Administrative Agent and
without any duty to account therefor to the Funding Agents, the Conduit Lenders
or the Committed Lenders.
SECTION 8.04 Indemnification of Administrative Agent. Each Committed
Lender severally agrees to indemnify the Administrative Agent (to the extent not
reimbursed by the Transaction Parties), ratably based on the Commitment of such
Committed Lender (or, if the Commitments have terminated, ratably according to
the respective Commitment of such Committed Lender immediately prior to such
termination), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Administrative Agent in any way relating to or arising out
of this Agreement or any other Transaction Document or any action taken or
omitted by the Administrative Agent under this Agreement or any other
Transaction Document, provided that no Committed Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct.
SECTION 8.05 Delegation of Duties. The Administrative Agent may
execute any of its duties through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
SECTION 8.06 Action or Inaction by Administrative Agent. The
Administrative Agent shall in all cases be fully justified in failing or
refusing to take action under any Transaction Document unless it shall first
receive such advice or concurrence of the Funding Agents or the Required
Committed Lenders, as the case may be, and assurance of its indemnification by
the Committed Lenders, as it deems appropriate. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Transaction Document in accordance with a request or
at the direction of the Required Committed Lenders, and such request or
direction and any action taken or failure to act pursuant thereto shall be
binding upon all Conduit Lenders, Committed Lenders and the Funding Agents. The
Lenders, the Funding Agents, and the Administrative Agent agree that unless any
action to be taken by the Administrative Agent under a Transaction Document (i)
specifically requires the advice or concurrence of all the Funding Agents or
(ii) specifically provides that it be taken by the Administrative Agent alone or
without any advice or concurrence of any Funding Agent, then the Administrative
Agent may (and shall, to the extent required hereunder) take action based upon
the advice or concurrence of the Required Committed Lenders.
SECTION 8.07 Notice of Termination Events; Action by Administrative
Agent. The Administrative Agent shall not be deemed to have knowledge or notice
of the
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occurrence of any Incipient Termination Event or of any Termination Event unless
the Administrative Agent has received notice from any Funding Agent, Lender, the
Collection Agent or the Borrower stating that an Incipient Termination Event or
Termination Event has occurred hereunder and describing such Incipient
Termination Event or Termination Event. If the Administrative Agent receives
such a notice, it shall promptly give notice thereof to each Funding Agent
whereupon each Funding Agent shall promptly give notice thereof to its
respective Conduit Lender(s) and Committed Lenders. The Administrative Agent
shall take such action concerning an Incipient Termination Event or a
Termination Event or any other matter hereunder as may be directed by the
Required Committed Lenders, (subject to the other provisions of this Article
VIII), but until the Administrative Agent receives such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, as the Administrative Agent deems advisable and
in the best interests of the Lenders.
SECTION 8.08 Non-Reliance on Administrative Agent and Other Parties.
Each Funding Agent and Lender expressly acknowledges that neither the
Administrative Agent nor any of its directors, officers, agents or employees has
made any representations or warranties to it and that no act by the
Administrative Agent hereafter taken, including any review of the affairs of the
Transaction Parties, shall be deemed to constitute any representation or
warranty by the Administrative Agent. Each Lender represents and warrants to the
Administrative Agent that, independently and without reliance upon the
Administrative Agent, any Funding Agent or any other Lender and based on such
documents and information as it has deemed appropriate, it has made and will
continue to make its own appraisal of and investigation into the business,
operations, property, prospects, financial and other conditions and
creditworthiness of each Transaction Party and the Receivables and its own
decision to enter into this Agreement and to take, or omit, action under any
Transaction Document. Except for items expressly required to be delivered under
any Transaction Document by the Administrative Agent to any Funding Agent or
Lender, the Administrative Agent shall not have any duty or responsibility to
provide any Funding Agent or Lender with any information concerning the
Transaction Parties or any of their Affiliates that comes into the possession of
the Administrative Agent or any of its directors, officers, agents, employees,
attorneys-in-fact or Affiliates.
SECTION 8.09 Successor Administrative Agent. The Administrative
Agent may, upon at least thirty days' notice to the Borrower, the Collection
Agent and each Funding Agent, resign as Administrative Agent. Except as provided
below, such resignation shall not become effective until a successor
Administrative Agent is appointed by the Required Committed Lenders and has
accepted such appointment. If no successor Administrative Agent shall have been
so appointed by the Required Committed Lenders, within 30 days after the
departing Administrative Agent's giving of notice of resignation, the departing
Administrative Agent may, on behalf of the Required Committed Lenders, appoint a
successor Administrative Agent, which successor Administrative Agent shall have
short-term debt ratings of at least A-1 from S&P and P-1 from ▇▇▇▇▇'▇ and shall
be either a commercial bank having a combined capital and surplus of at least
$250,000,000 or a Subsidiary of such an institution and (so long as no
Termination Event has occurred and is continuing hereunder) shall be acceptable
to the Borrower. If no successor Administrative Agent shall have been so
appointed by the Required Committed Lenders within 60 days after the departing
Administrative Agent's giving of notice of resignation, the departing
Administrative Agent may, on behalf of the Required Committed
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Lenders, petition a court of competent jurisdiction to appoint a successor
Administrative Agent, which successor Administrative Agent shall have short-term
debt ratings of at least A-1 from S&P and P-1 from ▇▇▇▇▇'▇, and shall be either
a commercial bank having a combined capital and surplus of at least $250,000,000
or a Subsidiary of such an institution. Upon such acceptance of its appointment
as Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall succeed to and become vested with all the
rights and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from any further duties and obligations
under the Transaction Documents. After any retiring Administrative Agent's
resignation hereunder, the provisions of Section 2.6 of the Servicing Agreement
and Article X and this Article VIII of this Agreement shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was the
Administrative Agent.
SECTION 8.10 Consent to Agreed-Upon Procedures. Each Lender and
Funding Agent, by becoming a party to this Agreement, authorizes the
Administrative Agent (a) to execute on its behalf a letter agreement with
respect to the limited engagement of, and consenting to the agreed-upon
procedures to be performed by, the certified public accountants of the Parent
Guarantor and its Subsidiaries on behalf of the Administrative Agent, the
Lenders and the Funding Agents in connection with the transactions contemplated
by the Transaction Documents so long as such procedures are consistent with
Section 5.02; and (b) to approve additional agreed-upon procedures.
ARTICLE IX
THE FUNDING AGENTS
SECTION 9.01 Authorization and Action. Each Conduit Lender and each
Committed Lender which belongs to the same Lender Group hereby appoints and
authorizes the Funding Agent for such Lender Group to take such action as agent
on its behalf and to exercise such powers under this Agreement as are delegated
to such Funding Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. No Funding Agent shall have any duties other than
those expressly set forth in the Transaction Documents, and no implied
obligations or liabilities shall be read into any Transaction Document, or
otherwise exist, against any Funding Agent. No Funding Agent assumes, nor shall
it be deemed to have assumed, any obligation to, or relationship of trust or
agency with any Transaction Party, Conduit Lender or Committed Lender except as
otherwise expressly agreed by such Funding Agent. Notwithstanding any provision
of this Agreement or any other Transaction Document, in no event shall any
Funding Agent ever be required to take any action which exposes such Funding
Agent to personal liability or which is contrary to any provision of any
Transaction Document or applicable law.
SECTION 9.02 Funding Agent's Reliance, Etc. No Funding Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them as a Funding Agent under or in
connection with this Agreement or the other Transaction Documents in the absence
of its or their own gross negligence or willful misconduct. Without limiting the
generality of the foregoing, a Funding Agent: (a) may consult with legal counsel
(including counsel for the Administrative Agent, the Borrower or the Collection
Agent), independent certified public accountants and other experts selected by
it and shall not be liable
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for any action taken or omitted to be taken in good faith by it in accordance
with the advice of such counsel, accountants or experts; (b) makes no warranty
or representation to any Conduit Lender or Committed Lender (whether written or
oral) and shall not be responsible to any Conduit Lender or Committed Lender for
any statements, warranties or representations (whether written or oral) made in
or in connection with this Agreement or any other Transaction Document; (c)
shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement or any
other Transaction Document on the part of any Transaction Party or any other
Person or to inspect the property (including the books and records) of any
Transaction Party; (d) shall not be responsible to any Conduit Lender or any
Committed Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, any other Transaction
Documents or any other instrument or document furnished pursuant hereto; and (e)
shall incur no liability under or in respect of this Agreement or any other
Transaction Document by acting upon any notice (including notice by telephone),
consent, certificate or other instrument or writing (which may be by telecopier)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 9.03 Funding Agent and Affiliates. With respect to any Loan
or interests therein owned by it, each Funding Agent shall have the same rights
and powers under this Agreement as any Committed Lender and may exercise the
same as though it were not a Funding Agent. A Funding Agent and any of its
Affiliates may generally engage in any kind of business with any Transaction
Party or any Obligor, any of their respective Affiliates and any Person who may
do business with or own securities of any Transaction Party or any Obligor or
any of their respective Affiliates, all as if such Funding Agent were not a
Funding Agent and without any duty to account therefor to any Conduit Lenders or
Committed Lenders.
SECTION 9.04 Indemnification of Funding Agents. Each Committed
Lender in any Lender Group severally agrees to indemnify the Funding Agent for
such Lender Group (to the extent not reimbursed by the Transaction Parties),
ratably according to its Pro Rata Share, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against such Funding Agent in any way
relating to or arising out of this Agreement or any other Transaction Document
or any action taken or omitted by such Funding Agent under this Agreement or any
other Transaction Document, provided that no Committed Lender shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such
Funding Agent's gross negligence or willful misconduct.
SECTION 9.05 Delegation of Duties. Each Funding Agent may execute
any of its duties through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. No Funding
Agent shall be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
SECTION 9.06 Action or Inaction by Funding Agent. Each Funding Agent
shall in all cases be fully justified in failing or refusing to take action
under any Transaction Document unless it shall first receive such advice or
concurrence of the Conduit Lenders and Committed Lenders in its Lender Group and
assurance of its indemnification by the Committed
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Lenders in its Lender Group, as it deems appropriate. Each Funding Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Transaction Document in accordance with a request or
at the direction of the Committed Lenders in its Lender Group representing a
majority of the Commitments in such Lender Group, and such request or direction
and any action taken or failure to act pursuant thereto shall be binding upon
all Conduit Lenders and Committed Lenders in its Lender Group.
SECTION 9.07 Notice of Events of Termination. No Funding Agent shall
be deemed to have knowledge or notice of the occurrence of any Incipient
Termination Event or of any Termination Event unless such Funding Agent has
received notice from the Administrative Agent, any other Funding Agent, any
Conduit Lender or Committed Lender, the Collection Agent or the Borrower stating
that an Incipient Termination Event or Termination Event has occurred hereunder
and describing such Incipient Termination Event or Termination Event. If a
Funding Agent receives such a notice, it shall promptly give notice thereof to
the Conduit Lenders and Committed Lenders in its Lender Group and to the
Administrative Agent (but only if such notice received by such Funding Agent was
not sent by the Administrative Agent). The Funding Agent may take such action
concerning an Incipient Termination Event or a Termination Event as may be
directed by Committed Lenders in its Lender Group representing a majority of the
Commitments in such Lender Group (subject to the other provisions of this
Article IX), but until such Funding Agent receives such directions, such Funding
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, as such Funding Agent deems advisable and in the best
interests of the Conduit Lenders and Committed Lenders in its Lender Group.
SECTION 9.08 Non-Reliance on Funding Agent and Other Parties. Except
to the extent otherwise agreed to in writing between a Conduit Lender and its
Funding Agent, each Conduit Lender and Committed Lender in the same Lender Group
expressly acknowledges that neither the Funding Agent for its Lender Group nor
any of such Funding Agent's directors, officers, agents or employees has made
any representations or warranties to it and that no act by such Funding Agent
hereafter taken, including any review of the affairs of the Transaction Parties,
shall be deemed to constitute any representation or warranty by such Funding
Agent. Each Conduit Lender and Committed Lender in the same Lender Group
represents and warrants to the Funding Agent for such Lender Group that,
independently and without reliance upon such Funding Agent, any other Funding
Agent, the Administrative Agent or any other Conduit Lender or Committed Lender
and based on such documents and information as it has deemed appropriate, it has
made and will continue to make its own appraisal of and investigation into the
business, operations, property, prospects, financial and other conditions and
creditworthiness of the Transaction Parties and the Receivables and its own
decision to enter into this Agreement and to take, or omit, action under any
Transaction Document. Except for items expressly required to be delivered under
any Transaction Document by a Funding Agent to any Conduit Lender or Committed
Lender in its Lender Group, no Funding Agent shall have any duty or
responsibility to provide any Conduit Lender or Committed Lender in its Lender
Group with any information concerning the Transaction Parties or any of their
Affiliates that comes into the possession of such Funding Agent or any of its
directors, officers, agents, employees, attorneys-in-fact or Affiliates.
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SECTION 9.09 Successor Funding Agent. Any Funding Agent may, upon at
least thirty (30) days' notice to the Administrative Agent, the Borrower, the
Collection Agent and the Conduit Lenders and Committed Lenders in its Lender
Group, resign as Funding Agent for its Lender Group. Such resignation shall not
become effective until a successor Funding Agent is appointed in the manner
prescribed by the relevant Asset Purchase Agreement or, in the absence of any
provisions in such Asset Purchase Agreement providing for the appointment of a
successor Funding Agent, until a successor Funding Agent is appointed by the
Conduit Lender(s) in such Lender Group (with the consent of Committed Lenders
representing a majority of the Commitments in such Lender Group) and has
accepted such appointment. If no successor Funding Agent shall have been so
appointed within 30 days after the departing Funding Agent's giving of notice of
resignation, then the departing Funding Agent may, on behalf of the Lenders in
its Lender Group, appoint a successor Funding Agent for such Lender Group, which
successor Funding Agent shall have short-term debt ratings of at least A-1 from
S&P and P-1 from ▇▇▇▇▇'▇ and shall be either a commercial bank having a combined
capital and surplus of at least $250,000,000 or an Affiliate of such an
institution. Upon such acceptance of its appointment as Funding Agent for such
Lender Group hereunder by a successor Funding Agent, such successor Funding
Agent shall succeed to and become vested with all the rights and duties of the
retiring Funding Agent, and the retiring Funding Agent shall be discharged from
any further duties and obligations under the Transaction Documents. After any
retiring Funding Agent's resignation hereunder, the provisions of Section 2.6 of
the Servicing Agreement and Article X and this Article IX of this Agreement
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was a Funding Agent.
SECTION 9.10 Reliance on Funding Agent. Unless otherwise advised in
writing by a Funding Agent or by any Conduit Lender or Committed Lender in such
Funding Agent's Lender Group, each party to this Agreement may assume that (i)
such Funding Agent is acting for the benefit and on behalf of each of the
Conduit Lenders and Committed Lenders in its Lender Group, as well as for the
benefit of each assignee or other transferee from any such Person, and (ii) each
action taken by such Funding Agent has been duly authorized and approved by all
necessary action on the part of the Conduit Lenders and Committed Lenders in its
Lender Group.
ARTICLE X
INDEMNIFICATION
SECTION 10.01 Indemnities by the Borrower. Without limiting any
other rights that the Administrative Agent, the Funding Agents, the Conduit
Lenders, the Committed Lenders, the Program Support Providers, any Program
Manager or any of their respective officers, directors, agents, employees,
controlling Persons or other Affiliates (each, an "Indemnified Party") may have
hereunder or under applicable law, the Borrower hereby agrees to indemnify each
Indemnified Party from and against any and all damages, losses, claims,
liabilities, deficiencies, costs, disbursements and expenses, including, without
limitation, interest, penalties, amounts paid in settlement and reasonable
attorneys' fees (all of the foregoing being collectively referred to as
"Indemnified Amounts") arising out of or resulting from this Agreement or any
other Transaction Document or the use of proceeds of Loans or in respect of any
Collateral, excluding, however, (a) Indemnified Amounts to the extent that such
Indemnified
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Amounts resulted from gross negligence or willful misconduct on the part of such
Indemnified Party and (b) any income taxes incurred by such Indemnified Party
arising out of or as a result of this Agreement or the ownership of Loans.
Without limiting or being limited by the foregoing, the Borrower shall pay on
demand to each Indemnified Party any and all amounts necessary to indemnify such
Indemnified Party from and against any and all Indemnified Amounts relating to
or resulting from any of the following (excluding Indemnified Amounts and taxes
described in clauses (a) and (b) above):
(i) any Receivable which the Borrower or the Collection Agent
includes as part of the Net Receivables Balance on any date but
which is not an Eligible Receivable as of such date;
(ii) any other representation, warranty, certification, report
or other statement made or deemed made by any Transaction Party (or
any of their respective officers) under or in connection with this
Agreement or any of the other Transaction Documents which shall have
been incorrect in any respect when made;
(iii) the failure by any Transaction Party to comply with any
applicable Law with respect to any Receivable or the related
Contract; or the failure of any Receivable or the related Contract
to conform to any such applicable Law;
(iv) the failure to vest in the Administrative Agent a first
priority perfected security interest in all of the Collateral, free
and clear of any Adverse Claim;
(v) the failure to have filed, or any delay in filing,
financing statements or other similar instruments or documents under
the UCC of any applicable jurisdiction or other applicable laws with
respect to any Collateral, whether at the time of any purchase or
reinvestment or at any subsequent time;
(vi) any dispute, claim or defense (other than discharge in
bankruptcy) of an Obligor to the payment of any Receivable
(including, without limitation, a defense based on such Receivable
or the related Contract not being a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with
its terms), or any other claim resulting from the sale of the
merchandise, goods or services related to such Receivable or the
furnishing or failure to furnish such merchandise, goods or services
or relating to collection activities with respect to such Receivable
(if such collection activities were performed by the Borrower or any
of its Affiliates acting as Collection Agent) or relating to any
Contract related thereto;
(vii) any failure of any Transaction Party to perform its
duties or obligations in accordance with the provisions hereof and
each other Transaction Document or to perform its duties or
obligations under the Contracts or to timely and fully comply in all
respects with the Credit and Collection Policy in regard to each
Receivable and the related Contract;
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(viii) any products liability, environmental or other claim
arising out of or in connection with merchandise, goods or services
which are the subject of any Contract or the sale of which gave rise
to any Receivable;
(ix) the commingling of Collections of Receivables at any time
with other funds;
(x) any investigation, litigation or proceeding (actual or
threatened) related to this Agreement or any other Transaction
Document or the use of proceeds of Loans or any Collateral;
(xi) any setoff with respect to any Receivable;
(xii) any claim brought by any Person other than an
Indemnified Party arising from any activity by the Borrower or any
Affiliate of the Borrower in servicing, administering or collecting
any Collateral;
(xiii) the failure by any Transaction Party to pay when due
any taxes, including, without limitation, sales, excise or personal
property taxes; or
(xiv) the Percentage Factor exceeding the Maximum Percentage
Factor as of the close of business on the Business Day immediately
preceding any Release Date or Borrowing Date.
Notwithstanding anything to the contrary in this Agreement, solely
for purposes of the Borrower's indemnification obligations in clauses (ii) and
(vii) of this Article X, any representation, warranty or covenant qualified by
the occurrence or non-occurrence of a Material Adverse Effect or similar
concepts of materiality shall be deemed to be not so qualified.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Amendments, Etc. No failure on the part of the Funding
Agents, the Conduit Lenders, the Committed Lenders or the Administrative Agent
to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. No amendment or waiver of any provision of this Agreement or consent to
any departure by any Transaction Party therefrom shall be effective unless in a
writing signed by the Administrative Agent and the Required Committed Lenders
(and, in the case of any amendment, also signed by the Borrower and the
Collection Agent), and then such amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided that no amendment, waiver or consent shall, unless in writing and
signed by each Lender (or, in the case of clause (c) below, each Lender having
its fees reduced or delayed or its Commitment or Conduit Lending Limit
increased) in addition to the Administrative Agent:
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(a) reduce the Principal Balance amount or Interest that is
payable on account of any Loan or Tranche or delay any scheduled
date for payment thereof;
(b) increase the Facility Limit;
(c) reduce fees payable by the Borrower to the Funding Agents,
the Conduit Lenders or the Committed Lenders or delay the dates on
which such fees are payable;
(d) extend the Scheduled Commitment Termination Date or the
Maturity Date;
(e) release any portion of the Collateral if a Termination
Event or Incipient Termination Event has occurred or would result
therefrom; or
(f) change any of the provisions of this Section or the
definition of "Required Committed Lenders";
(g) amend any Termination Event set forth in Section 7.01(e)
or (j); or
(h) amend the definition of "CP Rate", "Total Reserves",
"Percentage Factor", "Loss and Dilution Reserve", "Carrying Cost
Reserve", "Servicing Fee Reserve", "Default Ratio", "Eligible
Counterparty", "Defaulted Receivable", "Delinquent Receivable" or
"Net Receivables Balance" or increase the Maximum Percentage Factor
or any Concentration Limit; or
(i) release any Performance Guarantor from its obligations
under the Performance Guaranty;
and provided, further, that (x) no amendment, waiver or consent shall increase
the Commitment of any Committed Lender or the Conduit Lending Limit of any
Conduit Lender unless in writing and signed by such Committed Lender or such
Conduit Lender, as the case may be, and the relevant Funding Agent and (y) no
amendment, waiver or consent shall alter the duties of any Funding Agent in any
material respect without the consent of such Funding Agent.
SECTION 11.02 Notices, Etc. Except as provided below, all
communications and notices provided for hereunder shall be in writing (including
telecopy or electronic facsimile transmission or similar writing) and shall be
given to the other party at its address or telecopy number specified below or at
such other address or telecopy number as such party may hereafter specify for
the purposes of notice to such party. Each such notice or other communication
shall be effective (i) if given by telecopy, when such telecopy is transmitted
to the telecopy number specified in this Section 11.02 and confirmation is
received, (ii) if given by mail three Business Days following such posting,
postage prepaid, U.S. certified or registered, (iii) if given by overnight
courier, one Business Day after deposit thereof with a national overnight
courier service, or (iv) if given by any other means, when received at the
address specified in this Section 11.02. However, anything in this Section 11.02
to the contrary notwithstanding, the Borrower hereby authorizes the
Administrative Agent and each Funding Agent to effect Borrowings and Tranche
Period and Interest Rate selections based on telephonic
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notices made by any Person which the Administrative Agent or such Funding Agent
in good faith believes to be acting on behalf of the Borrower. The Borrower
agrees to deliver promptly to the Administrative Agent and each Funding Agent a
written confirmation of each telephonic notice signed by an authorized officer
of Borrower. However, the absence of such confirmation shall not affect the
validity of such notice. If the written confirmation differs in any material
respect from the action taken by the Administrative Agent or such Funding Agent,
the records of the Administrative Agent or such Funding Agent shall govern
absent manifest error.
If to a Committed Lender, to its address set forth on Schedule I.
If to a Conduit Lender, to its address set forth on Schedule I.
If to a Funding Agent, to its address set forth on Schedule I.
If to the Borrower:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Collection Agent:
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Executive Vice President and General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Administrative Agent:
JPMorgan Chase Bank
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ABF Operations
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇_▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
SECTION 11.03 Assignability.
(a) This Agreement and each Lenders' rights and obligations
hereunder shall be assignable by such Lender and its successors and permitted
assigns to any Eligible Assignee. Each assignor of a Loan or any interest
therein shall notify the Administrative Agent and the Borrower of any such
assignment. Each assignor of a Loan or any interest therein may, in connection
with the assignment or participation, disclose to the assignee or participant
any information relating to the Transaction Parties, including the Collateral,
furnished to such
79
assignor by or on behalf of any Transaction Party or by the Administrative
Agent; provided that, prior to any such disclosure, the assignee or participant
agrees to preserve the confidentiality of any confidential information relating
to the Transaction Parties received by it from any of the foregoing entities in
a manner consistent with Section 11.06(b).
(b) Assignments by Conduit Lenders. Each Conduit Lender may assign,
grant security interests in or otherwise transfer all or any portion of the
Loans to any Eligible Assignee or Program Support Provider with respect to such
Conduit Lender without prior notice to or consent from any other party or any
other condition or restriction of any kind. Without limiting the generality of
the foregoing, each Conduit Lender may, from time to time with prior or
concurrent notice to the Borrower and each Funding Agent, assign all or any
portion of its interest in the Loans and its rights and obligations under this
Agreement and any other Transaction Documents to which it is a party to a
Conduit Assignee. Upon such assignment by a Conduit Lender to a Conduit
Assignee, (i) unless a new Lender Group is being established pursuant to Section
11.03(i) below, the Funding Agent for such Conduit Lender will act as the
Funding Agent for such Conduit Assignee hereunder, (ii) such Conduit Assignee
and its liquidity support provider(s) and credit support provider(s) and other
related parties (including all of its Program Support Providers) shall have the
benefit of all the rights and protections provided to such Conduit Lender and
its related Committed Lenders herein and in the other Transaction Documents
(including, without limitation, any limitation on recourse against such Conduit
Assignee), (iii) such Conduit Assignee shall assume all of such Conduit Lender's
obligations hereunder or under any other Transaction Document (whenever created,
whether before or after such assignment) with respect to the assigned portion of
the Loans held by such Conduit Lender and such Conduit Lender shall be released
from all such obligations, (iv) all distributions to such Conduit Lender
hereunder with respect to the assigned portion of the Loans shall be made to
such Conduit Assignee, (v) the definition of the term "CP Rate" shall be
determined on the basis of the interest rate or discount applicable to
Commercial Paper issued by such Conduit Assignee (rather than such assigning
Conduit Lender), (vi) the defined terms and other terms and provisions of this
Agreement and the other Transaction Documents shall be interpreted in accordance
with the foregoing, and (vii) if requested by the Administrative Agent or
Funding Agent with respect to the Conduit Assignee, the parties will execute and
deliver such further agreements and documents (including amendments to this
Agreement) and take such other actions as the Administrative Agent or such
Funding Agent may reasonably request to evidence and give effect to the
foregoing.
(c) Assignment by Committed Lenders. Each Committed Lender may
assign to any Eligible Assignee all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment and any Loans or interests therein owned by it); provided, however
that
(i) each such assignment shall be of a constant, and not a
varying, percentage of all rights and obligations under this
Agreement,
(ii) the amount being assigned pursuant to each such
assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall in no event be
less than the lesser of (x) $10,000,000 and (y) all of the assigning
Committed Lender's Commitment, and
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(iii) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and
recording in the Register (as defined below), an Assignment and
Acceptance, together with a processing and recordation fee of
$2,500.
Upon such execution, delivery, acceptance and recording from and
after the effective date specified in such Assignment and Acceptance, (x) the
assignee thereunder shall be a party to this Agreement and, to the extent that
rights and obligations under this Agreement have been assigned to it pursuant to
such Assignment and Acceptance, have the rights and obligations of a Committed
Lender thereunder and (y) the assigning Committed Lender shall, to the extent
that rights and obligations have been assigned by it pursuant to such Assignment
and Acceptance, relinquish such rights and be released from such obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Committed Lender's rights and
obligations under this Agreement, such Committed Lender shall cease to be a
party hereto). In addition, any Committed Lender or any of its Affiliates may
assign any of its rights (including, without limitation, rights to payment of
Principal Balance and Interest) under this Agreement to any Federal Reserve Bank
without notice to or consent of any Transaction Party, any other Committed
Lender or Conduit Lender, any Funding Agent or the Administrative Agent.
(d) Register. At all times during which any Loan is outstanding, the
Administrative Agent shall maintain at its address referred to in Section 11.02
of this Agreement (or such other address of the Administrative Agent notified by
the Administrative Agent to the other parties hereto) a register as provided
herein (the "Register"). All Loans and any interest therein, and any Assignments
and Acceptances of any Loans and any interest therein delivered to and accepted
by the Administrative Agent, shall be registered in the Register, and the
Register shall serve as a record of ownership that identifies the owner of each
Loan and any interest therein. Notwithstanding any other provision of this
Agreement, no transfer of any Loan or any interest therein shall be effective
unless and until such transfer has been recorded in the Register. The entries in
the Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Collection Agent, the Administrative Agent, the
Funding Agents, the Conduit Lenders and the Committed Lenders may treat each
Person whose name is recorded in the Register as a Committed Lender or Conduit
Lender, as the case may be, under this Agreement for all purposes of this
Agreement. This Section 11.03(d) shall be construed so that each Loan and any
interest therein is maintained at all times in "registered form" within the
meaning of Sections 163(f), 871(h) and 881(c) of the IRC, solely for the
purposes of this Section 11.03, the Administrative Agent will act as an agent of
the Borrower. The Register shall be available for inspection by the Borrower,
any Funding Agent, any Conduit Lender or any Committed Lender at any reasonable
time and from time to time upon reasonable prior notice.
(e) Procedure. Upon its receipt of an Assignment and Acceptance
executed by an assigning Committed Lender and an Eligible Assignee, the
Administrative Agent shall, if such Assignment and Acceptance has been duly
completed, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower.
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(f) Participations. Each Lender may sell participations to one or
more banks or other entities (each a "Participant") in or to all or a portion of
its rights and obligations under this Agreement (including, without limitation,
all or a portion of its interests in the Loans owned by it and, in the case of a
Committed Lender, its Commitment); provided, however, that
(i) such Lender's obligations under this Agreement shall
remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties to this Agreement for the performance of such obligations,
(iii) the Administrative Agent, the Funding Agents, the other
Lenders, the Borrower and the Collection Agent shall have the right
to continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that the Participant shall not have any right to
direct the enforcement of this Agreement or other Transaction Documents or to
approve any amendment, modification or waiver of any provision of this Agreement
or the other Transaction Documents; provided that such agreement or instrument
may provide that such Committed Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver of a type that would
require the consent of each Lender affected thereby pursuant to Section 11.01.
Borrower acknowledges and agrees that a Committed Lender's source of funds may
derive in part from its Participants. Accordingly, references in Sections 2.11,
2.12, 2.13, 2.14, 2.15, 10.01 and 11.04 and the other terms and provisions of
this Agreement and the other Transaction Documents to determinations, reserve
and capital adequacy requirements, expenses, increased costs, reduced receipts,
Indemnified Amounts and the like as they pertain to such Lender shall be deemed
also to include those of its Participants.
(g) Neither the Borrower nor the Collection Agent may assign any of
its rights or obligations hereunder or any interest herein without the prior
written consent of the Administrative Agent and the Required Committed Lenders.
(h) The Collection Agent and the Borrower agree to assist each
Committed Lender, upon its reasonable request, in syndicating their respective
Commitments hereunder, including making management and representatives of the
Collection Agent and the Borrower reasonably available to participate in
informational meetings with potential assignees.
(i) In connection with any assignment by a Conduit Lender of all or
any portion of its Conduit Lending Limit to a Conduit Assignee, such Conduit
Assignee may elect to establish a new Lender Group hereunder by the execution
and delivery of a Joinder Agreement by such Conduit Assignee, the Committed
Lenders which are to be in its Lender Group and the Person which is to be the
Funding Agent for such Lender Group, in each case without the consent of any
other party. Upon the effective date of such Joinder Agreement, (a) the Person
specified therein as a "Funding Agent" shall become a party hereto and a party
to the Lender Fee Letter as a Funding Agent, entitled to the rights and subject
to the obligations of a Funding Agent
82
hereunder, (b) Schedule I shall be deemed to have been amended as appropriate to
incorporate the information set forth in such Joinder Agreement, (c) the
Borrower shall deliver to the new Funding Agent a Note payable to such Funding
Agent with a stated principal amount equal to the Lender Group Limit for such
Lender Group, (d) in the case of a partial assignment, the Borrower shall
deliver to the Funding Agent for the assigning Conduit Lender a new Note
reflecting the reduction in the Lender Group Limit for its Lender Group and (e)
the Funding Agent for the assigning Conduit Lender shall return its old Note to
the Borrower for cancellation (subject, in the case of a partial assignment, to
its receipt of the new Note pursuant to clause (d)).
SECTION 11.04 Costs and Expenses. In addition to the rights of
indemnification granted under Section 10.01 hereof, and subject to any
limitations set forth in the Lender Fee Letter or any other written agreement
between Borrower and the applicable Secured Party, the Borrower agrees to pay on
demand all reasonable costs and expenses incurred by any Indemnified Party in
connection with the preparation, execution, delivery and administration of this
Agreement, any Asset Purchase Agreement and the other Transaction Documents,
including, without limitation, (i) the reasonable fees and out-of-pocket
expenses of counsel for the Administrative Agent, the Conduit Lenders, the
Funding Agents, the Committed Lenders and their respective Affiliates with
respect thereto and with respect to advising the Administrative Agent, the
Funding Agents, the Conduit Lenders, the Committed Lenders and their respective
Affiliates as to their rights and remedies under this Agreement, (ii) all rating
agency fees, (iii) all reasonable fees and expenses associated with any audits
and other due diligence conducted by the Administrative Agent prior to the
Closing Date, (iv) any amendments, waivers or consents under the Transaction
Documents and (v) to the extent not included in the CP Rate for any Conduit
Lender, all reasonable costs incurred by such Conduit Lender to open and
maintain accounts in Local Currencies in connection with the Loans made by it
hereunder. In addition, the Borrower agrees to pay on demand all costs and
expenses (including reasonable counsel fees and expenses), of the Administrative
Agent, the Funding Agents, the Conduit Lenders, the Committed Lenders and their
respective Affiliates, incurred in connection with the enforcement of, or any
dispute, work-out, litigation or preparation for litigation involving, this
Agreement or any other Transaction Document.
SECTION 11.05 No Proceedings. Each of the Borrower, the
Administrative Agent, the Collection Agent, each Funding Agent, each Conduit
Lender, each Committed Lender, each assignee of a Loan or any interest therein
and each Person which enters into a commitment to purchase Loans or interests
therein hereby agrees that it will not institute against any Conduit Lender any
proceeding of the type referred to in the definition of "Event of Bankruptcy" so
long as any Commercial Paper or other senior indebtedness issued by such Conduit
Lender shall be outstanding or there shall not have elapsed one year plus one
day since the last day on which any such Commercial Paper or other senior
indebtedness shall have been outstanding.
SECTION 11.06 Confidentiality.
(a) Subject to Section 11.06(c) below, the Fee Letters (including
any prior drafts thereof) and any other pricing information relating to the
facility contemplated by the Transaction Documents (including, without
limitation, such information set forth in any
83
engagement letter, term sheet or proposal prior to the date hereof)
(collectively, "Product Information") is confidential. Each of the Borrower and
the Collection Agent agrees:
(i) to keep all Product Information confidential and to
disclose Product Information only to those of its officers,
employees, agents, accountants, legal counsel and other
representatives (collectively "Representatives") who have a need to
know such Product Information for the purpose of assisting in the
negotiation, completion and administration of the facility
contemplated hereby (the "Facility");
(ii) to use the Product Information only in connection with
the Facility and not for any other purpose; and
(iii) to cause its Representatives to comply with these
provisions and to be responsible for any failure of any
Representative to so comply.
The provisions of this Section shall not apply to Product
Information that is or hereafter becomes (through a source other than the
Borrower, the Collection Agent or any of their respective Affiliates or
Representatives) a matter of general public knowledge. The provisions of this
Section shall not prohibit the Borrower or the Collection Agent from filing with
any governmental or regulatory agency any information or other documents with
respect to the Facility as may be required by applicable Law.
(b) Subject to Section 11.06(c) below, each Lender, each Funding
Agent, and the Administrative Agent agrees to maintain the confidentiality of
all non-public information with respect to the Borrower, the Collection Agent or
the Receivables furnished or delivered to it pursuant to this Agreement;
provided, that such information may be disclosed (i) to such party's officers,
employees, agents, accountants, legal counsel and other representatives
(collectively "Lender Representatives") who have a need to know such information
for the purpose of assisting in the negotiation, completion and administration
of the facility contemplated hereby, (ii) to such party's assignees and
participants and potential assignees and participants to the extent such
disclosure is made pursuant to a written agreement of confidentiality
substantially similar to this Section 11.06(b), (iii) to the Rating Agencies and
the Program Support Providers for each Conduit Lender, (iv) to the extent
required by applicable Law or by any Official Body and (v) in connection with
the enforcement of any Transaction Document.
The provisions of Section 11.06(b) shall not apply to information
that is or hereafter becomes (through a source other than the applicable Lender,
Funding Agent or the Administrative Agent or any Lender Representative
associated with such party) a matter of general public knowledge. The provisions
of this Section shall not prohibit any Lender, Funding Agent or the
Administrative Agent from filing with or making available to any governmental or
regulatory agency any information or other documents with respect to the
Facility as may be required by applicable Law or requested by such governmental
or regulatory agency.
(c) Each of the parties hereto hereby agrees that, from the
commencement of discussions with respect to the transaction contemplated by this
Agreement and the other Transaction Documents (the "Transaction"), each of the
parties hereto (and each of their
84
respective, and their respective affiliates, employees, officers, directors,
advisors, representatives and agents) are permitted to disclose to any and all
persons, without limitation of any kind, the structure and tax aspects (as such
terms are used in Internal Revenue Code Sections 6011, 6111 and 6112 and the
regulations promulgated thereunder) of the Transaction, and all materials of any
kind (including opinions or other tax analysis) that are provided to any party
hereto related to such structure and tax aspects. In this regard, each party
hereto acknowledges and agrees that the disclosure of the structure or tax
aspects of the Transaction is not limited in any way by an express or implied
understanding or agreement, oral or written (whether or not such understanding
or agreement is legally binding). Furthermore, each party hereto acknowledges
and agrees that it does not know or have reason to know that its use or
disclosure of information relating to the structure or tax aspects of the
Transaction is limited in any other manner (such as where the Transaction is
claimed to be proprietary or exclusive) for the benefit of any other Person. To
the extent that disclosure of the structure or tax aspects of the Transaction by
any party hereto is limited by any existing agreement between the parties
hereto, such limitation is agreed to be void ab initio and such agreement is
hereby amended to permit disclosure of the structure and tax aspects of the
Transaction.
SECTION 11.07 Further Assurances. Each of the Borrower and the
Collection Agent shall execute, acknowledge and deliver, or cause to be
executed, acknowledged or delivered, from time to time, within a reasonable time
period of such request, (A) such amendments or supplements to this Agreement and
the other Transaction Documents as are requested by the Administrative Agent
(acting at the direction of the each Funding Agent and the Committed Lenders
necessary to approve such action pursuant to Section 11.01), and (B) such
further instruments and take such further action, in each case, as may be
reasonably necessary (as determined by the Funding Agents in consultation with
the Collection Agent), to obtain the confirmation of the current ratings
assigned to the Commercial Paper of any Conduit Lender (on an unwrapped basis),
to the extent such ratings are attributable to the transactions contemplated
hereby and the other Transaction Documents. In furtherance of the foregoing and
thereafter from time to time as may be necessary, each of the Borrower and the
Collection Agent shall (A) cooperate with each Rating Agency in connection with
any review of the Transaction Documents which may be undertaken by such Rating
Agency and (B) provide each Rating Agency with such information or access to
such information as they may reasonably request in connection with any future
review of the ratings referred to above.
SECTION 11.08 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 11.09 Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original and all of which when taken together shall constitute
one and the same agreement. 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 11.10 Integration; Binding Effect; Survival of Termination.
This Agreement and the other Transaction Documents executed by the parties
hereto on the date hereof contain the final and complete integration of all
prior expressions by the parties hereto
85
with respect to the subject matter hereof and shall constitute the entire
agreement among the parties hereto with respect to the subject matter hereof
superseding all prior oral or written understandings. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns (including any trustee in bankruptcy). Any
provisions of this Agreement which are 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, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. This Agreement shall create and constitute the continuing
obligations of the parties hereto in accordance with its terms and shall remain
in full force and effect until the Final Payout Date; provided, however, that
the provisions of Sections 2.11, 2.12, 2.13, 2.14, 2.15, 10.01, 11.04, 11.05,
11.06 and 11.15 shall survive any termination of this Agreement.
SECTION 11.11 Consent to Jurisdiction.
(a) Each party hereto hereby irrevocably submits to the
non-exclusive jurisdiction of any New York State or Federal court sitting in New
York City in any action or proceeding arising out of or relating to this
Agreement, and each party hereto hereby irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in such New
York State court or, to the extent permitted by law, in such Federal court. The
parties hereto hereby irrevocably waive, to the fullest extent they may
effectively do so, the defense of an inconvenient forum to the maintenance of
such action or proceeding. The parties hereto agree that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(b) Each of the Borrower and the Collection Agent consents to the
service of any and all process in any such action or proceeding by the mailing
of copies of such process to it at its address specified in Section 11.02.
Nothing in this Section 11.11 shall affect the right of any Conduit Lender, any
Committed Lender, any Funding Agent or the Administrative Agent to serve legal
process in any other manner permitted by law.
SECTION 11.12 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT.
SECTION 11.13 Right of Setoff. Each Lender is hereby authorized (in
addition to any other rights it may have) at any time after the occurrence of
the Termination Date due to the occurrence of a Termination Event, or during the
continuation of an Incipient Termination Event, to set off, appropriate and
apply (without presentment, demand, protest or other notice which are hereby
expressly waived) any deposits and any other indebtedness held or owing by such
Lender to, or for the account of, the Borrower against the amount of the
Borrower Obligations owing by the Borrower to such Person.
86
SECTION 11.14 Ratable Payments. If any Committed Lender, whether by
setoff or otherwise, has payment made to it with respect to any Borrower
Obligations in a greater proportion than that received by any other Committed
Lender entitled to receive a ratable share of such Borrower Obligations, such
Committed Lender agrees, promptly upon demand, to purchase for cash without
recourse or warranty a portion of such Borrower Obligations held by the other
Committed Lenders so that after such purchase each Committed Lender will hold
its ratable proportion of such Borrower Obligations; provided that if all or any
portion of such excess amount is thereafter recovered from such Committed
Lender, such purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest.
SECTION 11.15 Limitation of Liability.
(a) No claim may be made by any Transaction Party or any other
Person against any Lender, any Funding Agent, the Administrative Agent or their
respective Affiliates, directors, officers, employees, attorneys or agents (each
a "Lender Party") for any special, indirect, consequential or punitive damages
in respect of any claim for breach of contract or any other theory of liability
arising out of or related to the transactions contemplated by this Agreement or
any other Transaction Document, or any act, omission or event occurring in
connection herewith or therewith, except with respect to any claim arising out
of the willful misconduct or gross negligence of such Lender Party; and each of
the Borrower and the Collection Agent hereby waives, releases, and agrees not to
▇▇▇ upon any claim for any such damages, whether or not accrued and whether or
not known or suspected to exist in its favor.
(b) Notwithstanding anything to the contrary contained herein, the
obligations of the respective Conduit Lenders under this Agreement are solely
the corporate obligations of each such Conduit Lender and shall be payable only
at such time as funds are actually received by, or are available to, such
Conduit Lender in excess of funds necessary to pay in full all outstanding
Commercial Paper issued by such Conduit Lender and, to the extent funds are not
available to pay such obligations, the claims relating thereto shall not
constitute a claim against such Conduit Lender. Each party hereto agrees that
the payment of any claim (as defined in Section 101 of Title 11 of the
Bankruptcy Code) of any such party shall be subordinated to the payment in full
of all Commercial Paper.
(c) No recourse under any obligation, covenant or agreement of any
Conduit Lender contained in this Agreement shall be had against any
incorporator, stockholder, officer, director, member, manager, employee or agent
of such Conduit Lender, the Funding Agent with respect to such Conduit Lender or
any of their Affiliates (solely by virtue of such capacity) by the enforcement
of any assessment or by any legal or equitable proceeding, by virtue of any
statute or otherwise; it being expressly agreed and understood that this
Agreement is solely a corporate obligation of such Conduit Lender, and that no
personal liability whatever shall attach to or be incurred by any incorporator,
stockholder, officer, director, member, manager, employee or agent of any
Conduit Lender, any Funding Agent or any of their Affiliates (solely by virtue
of such capacity) or any of them under or by reason of any of the obligations,
covenants or agreements of such Conduit Lender contained in this Agreement, or
implied therefrom, and that any and all personal liability for breaches by any
Conduit Lender of any of such obligations, covenants or agreements, either at
common law or at equity, or by statute, rule or regulation, of every such
incorporator, stockholder, officer, director, member, manager, employee or agent
is
87
hereby expressly waived as a condition of and in consideration for the execution
of this Agreement; provided that the foregoing shall not relieve any such Person
from any liability it might otherwise have as a result of fraudulent actions
taken or fraudulent omissions made by them.
SECTION 11.16 Limitation on the Addition and Termination of
Originators. (a) Notwithstanding anything to the contrary contained in the
Originator Purchase Agreement, the Borrower shall not consent to any request
made to terminate the right or obligation of any Originator to continue selling
all its Receivables to the Transferor under the Originator Purchase Agreement,
nor will any Originator which is the subject of such request be terminated under
the Originator Purchase Agreement, in each case unless (i) the Collection Agent
provides the Administrative Agent, each Funding Agent and each Committed Lender
with a certificate (signed by a Responsible Officer of the Collection Agent)
which attaches a Weekly Report or Daily Report giving pro forma effect to any
reduction in the Net Receivables Balance resulting from the termination of such
Originator and any change in the Total Reserves as set forth in the next
sentence, and which certifies that, after giving pro forma effect to such
termination and any prepayments of Loans on or prior to the date of such
termination, the Percentage Factor does not exceed the Maximum Percentage
Factor, as determined by reference to the most recent Portfolio Report delivered
under the Servicing Agreement, (ii) no Termination Event or Incipient
Termination Event (other than with respect to the Originator so terminated) has
occurred and is continuing (both before and after giving effect to such
termination) and (iii) the Administrative Agent and the Funding Agents will have
received prior notice of such termination. In the event any Originator is so
terminated, the ratios used in calculating the Total Reserves shall be
determined as if the Receivables of such Originator had never existed.
(b) The Borrower will not, and will not permit the Transferor to, consent to the
addition of a new Originator under the Originator Purchase Agreement except (i)
with the consent of the Required Committed Lenders (such consent not to be
unreasonably withheld), (ii) upon the satisfaction of the conditions precedent
specified in such Originator Purchase Agreement and (iii) upon the delivery of
an amended Schedule VII reflecting the addition of such new Originator.
88
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
TRW AUTOMOTIVE GLOBAL RECEIVABLES LLC,
as Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
DELAWARE FUNDING COMPANY, LLC,
as a Conduit Lender
By: /s/
-----------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A.,
as a Funding Agent
By: /s/
-----------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A.,
as a Committed Lender
By: /s/
-----------------------
Name:
Title:
90
ALPINE SECURITIZATION CORP.,
as a Conduit Lender
By: Credit Suisse First Boston, New York Branch, as
Attorney-in-Fact
By: /s/
-----------------------------
Name:
Title:
By: /s/
-----------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH,
as a Funding Agent
By: /s/
-----------------------------
Name:
Title:
By: /s/
-----------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH,
as a Committed Lender
By: /s/
-----------------------------
Name:
Title:
By: /s/
-----------------------------
Name:
Title:
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ FUNDING CORP.,
as a Conduit Lender
By: /s/
-----------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
as a Funding Agent
By: /s/
-----------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
as a Committed Lender
By: /s/
-----------------------------
Name:
Title:
92
THREE PILLARS FUNDING LLC,
as a Conduit Lender
By: /s/
-----------------------------
Name:
Title:
SUNTRUST CAPITAL MARKETS, INC.,
as a Funding Agent
By: /s/
-----------------------------
Name:
Title:
SUNTRUST BANK,
as a Committed Lender
By: /s/
-----------------------------
Name:
Title:
93
BEETHOVEN FUNDING CORPORATION,
as a Conduit Lender
By: /s/
-----------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK BRANCH,
as a Funding Agent
By: /s/
-----------------------------
Name:
Title:
By: /s/
-----------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK BRANCH,
as a Committed Lender
By: /s/
-----------------------------
Name:
Title:
By: /s/
-----------------------------
Name:
Title:
94
JPMORGAN CHASE BANK, N.A.
as Administrative Agent
By: /s/
-----------------------------
Name:
Title:
95