Exhibit 4.4
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
among
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PRODUCTS CO.
AND ITS WHOLLY-OWNED
DIRECT AND INDIRECT
SUBSIDIARIES NAMED HEREIN,
AS SELLERS
and
CARCORP, INC.,
AS PURCHASER
AND THE OTHER SELLERS FROM TIME TO TIME
NAMED HEREIN
DATED AS OF DECEMBER 20, 2001
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS........................................................2
Definitions ........................................................2
Other Terms ........................................................2
Computation of Time Periods.........................................2
ARTICLE II PURCHASE, CONVEYANCE AND SERVICING OF RECEIVABLES.................2
SECTION II.1. Sales................................................2
Confirmation of Prior Sales.........................................4
ARTICLE III CONSIDERATION AND PAYMENT; REPORTING; ADMINISTRATION.............4
Purchase Price .....................................................4
SECTION III.2. Payment of Purchase Price...........................4
SECTION III.3. Reports.............................................5
Collections on Receivables..........................................5
ARTICLE IV REPRESENTATIONS AND WARRANTIES....................................6
Sellers' Representations and Warranties.............................6
Reaffirmation of Representations and Warranties by the Sellers;
Notice of Breach...................................................10
ARTICLE V COVENANTS OF THE SELLERS..........................................10
Covenants of the Sellers...........................................10
ARTICLE VI REPURCHASE OBLIGATION............................................16
Mandatory Repurchase...............................................16
Dilutions, Etc. ...................................................16
ARTICLE VII CONDITIONS PRECEDENT............................................17
Conditions Precedent to Purchaser's Purchases of Receivables.......17
Conditions Precedent to the Addition of a Seller...................18
Conditions Precedent to Effectiveness of Restatement...............20
ARTICLE VIII SELLER NOTE....................................................20
Seller Note .......................................................20
SECTION VIII.2. Subordination.....................................21
Offsets, Etc. .....................................................21
i
Page
ARTICLE IX TERM AND TERMINATION.............................................21
Term ..............................................................21
Effect of Termination..............................................22
SECTION IX.3. Termination of Sellers..............................22
ARTICLE X MISCELLANEOUS PROVISIONS..........................................23
Amendments, Etc. ..................................................23
Governing Law; Submission to Jurisdiction..........................23
Notices ...........................................................23
Severability of Provisions.........................................24
Assignments Generally..............................................24
Further Assurances ................................................25
No Waiver; Cumulative Remedies.....................................25
Counterparts ......................................................25
Binding Effect; Third-Party Beneficiaries..........................25
Merger and Integration.............................................25
Headings ..........................................................25
Exhibits ..........................................................25
Addition of Sellers ...............................................26
SECTION X.14. Additional Representations, Warranties and
Covanants..........................................................26
EXHIBITS
EXHIBIT A Principal Place of Business, Chief Executive Office and
Location of Records.......................................A-1
EXHIBIT B Form of Seller Note.......................................B-1
EXHIBIT C Form of Additional Seller Supplement......................C-1
EXHIBIT D Sellers...................................................D-1
ii
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
This AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, dated as of
December 20, 2001 (as amended, supplemented or otherwise modified and in effect
from time to time, this "Agreement"), among ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PRODUCTS CO., a
Delaware corporation ("C&A"), as a seller, C&A's wholly-owned direct and
indirect Subsidiaries listed on Exhibit D hereto as sellers (C&A and such
Subsidiaries are each referred to herein as a "Seller", and, together with the
other sellers that become parties hereto pursuant to the terms of this
Agreement, the "Sellers") and CARCORP, INC., a Delaware corporation, as
purchaser (in such capacity, the "Purchaser").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the parties hereto desire to amend and restate, as of December 20,
2001 (the "Restatement Date"), the Amended and Restated Receivables Purchase
Agreement (as amended or supplemented prior to the Restatement Date, the "Prior
Agreement"), dated as of September 29, 2000 (the "Prior Closing Date"), among
C&A, C&A's wholly-owned direct and indirect Subsidiaries listed on Exhibit D to
the Prior Agreement as sellers or added as sellers thereafter (collectively, the
"Existing Sellers"), and the Purchaser, which Prior Agreement amended and
restated the Receivables Purchase Agreement (as amended or supplemented prior to
the Prior Closing Date, the "Original Agreement"), dated as of December 27, 1999
(the "Original Closing Date");
WHEREAS, the Purchaser desires to continue to purchase from time to time
certain receivables of each Existing Seller and related assets until the related
Purchase Termination Date;
WHEREAS, the Existing Sellers desire to continue to sell and assign from
time to time such receivables and related assets to the Purchaser upon the terms
and conditions hereinafter set forth;
WHEREAS, the parties hereto desire to add Textron Automotive Interiors
Inc., Textron Automotive Exteriors Inc., M&C Advanced Processes, Inc. and
Textron Canada Limited as new sellers (the "New Sellers") hereunder;
WHEREAS, the Purchaser desires to purchase from time to time certain
receivables and related assets of the New Sellers existing on the Restatement
Date and thereafter until the Purchase Termination Date for each such New
Seller; and
WHEREAS, the New Sellers desire to sell and assign from time to time such
rights to receive and related assets to the Purchaser upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser and the Sellers
hereby agree to amend and restate the Original Agreement in its entirety to read
as follows:
ARTICLE I
DEFINITIONS
Definitions. All capitalized terms used herein have the meanings specified
herein or, if not so specified, the meaning specified in, or incorporated by
reference into, Schedule A to the Receivables Transfer Agreement, dated as of
December 20, 2001 (as amended, supplemented or otherwise modified and in effect
from time to time, the "Receivables Transfer Agreement"), by and among the
Purchaser, as Transferor thereunder, C&A, individually and as Collection Agent
thereunder, the Persons parties thereto as CP Conduit Purchasers, Committed
Purchasers and Funding Agents, and JPMorgan Chase Bank (formerly The Chase
Manhattan Bank), as Administrative Agent, which Schedule A amends and restates
Annex X to the Receivables Transfer Agreement dated as of December 27, 1999, by
and between Carcorp, Inc. as transferor, C&A, as guarantor and as collection
agent, the initial purchasers parties thereto, the PARCO APA Banks parties
thereto, the funding agents parties thereto, and The Chase Manhattan Bank, as
administrative agent (as amended to the date hereof), as incorporated by
reference into the Original Agreement, in its entirety.
Other Terms. All accounting terms not specifically defined herein shall be
construed in accordance with GAAP, consistently applied. All terms used in
Article 9 of the Relevant UCC, and not specifically defined herein, are used
herein as defined in such Article 9.
Computation of Time Periods. Unless otherwise stated in this Agreement, in
the computation of a period of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each means "to but excluding," and the word "within" means "from and excluding a
specified date and to and including a later specified date."
ARTICLE II
PURCHASE, CONVEYANCE AND SERVICING OF RECEIVABLES
SECTION II.1. Sales.
(a) Upon the terms and subject to the conditions set forth herein, each
Seller hereby sells, assigns, transfers and conveys to the Purchaser, and the
Purchaser hereby purchases from each Seller, all of such Seller's right, title
and interest, whether now owned or hereafter acquired and wherever located, in,
to and under such Seller's Receivables outstanding on (x) the Original Closing
Date, in the case of the Sellers party to the Original Agreement, and (y) the
related Seller Addition Date, in the case of Sellers (including the New Sellers)
added as parties hereto pursuant to Section 10.13 (clause (x) or (y) above, as
applicable, the related "Seller Effective Date"), and, in each case, thereafter
owned by such Seller through the related Purchase Termination Date, together
with all Related Security and Collections with respect thereto and all Proceeds
of the foregoing. Such interest in the Receivables, expressed as a Dollar
amount, shall be equal to the Outstanding Balance of the Receivables from time
to time. Any sale, assignment,
2
transfer and conveyance hereunder does not constitute an assumption by the
Purchaser of any obligations of the Sellers or any other Person to the Obligors
or to any other Person in connection with the Receivables or under any Related
Security or any other agreement or instrument relating to the Receivables.
(b) Each Seller agrees to record and file on or prior to the related Seller
Effective Date, at its own expense, a financing statement or statements (or
other similar filings) with respect to such Seller's Receivables and the other
property described in Section 2.1(a) sold by such Seller hereunder meeting the
requirements of applicable law in such manner and in such jurisdictions as are
necessary to perfect and protect the interests of the Purchaser created hereby
under the Relevant UCC or other applicable laws against all creditors of, and
purchasers from, such Seller, and to deliver either the originals of such
financing statements (or other similar filings) or a file- stamped copy of such
financing statements (or other similar filings) or other evidence of such
filings to the Purchaser on or prior to the related Seller Effective Date.
(c) Each Seller agrees that from time to time, at its expense, it will
promptly execute and deliver all instruments and documents and take all actions
as may be necessary or as the Purchaser may reasonably request in order to
perfect or protect the interest of the Purchaser in the Receivables purchased
hereunder or to enable the Purchaser to exercise or enforce any of its rights
hereunder. Without limiting the foregoing, each Seller will, in order to
accurately reflect this purchase and sale transaction, execute and file such
financing, financing change or continuation statements or amendments thereto or
assignments thereof (as permitted pursuant hereto) as may be requested by the
Purchaser and ▇▇▇▇ its respective master data processing records (or related
subledger) with a legend describing the purchase by the Purchaser of such
Seller's Receivables and the lien of the Administrative Agent pursuant to the
Receivables Transfer Agreement and stating "An interest in these rights to
receive has been granted to JPMorgan Chase Bank, as Administrative Agent, on
behalf of the Committed Purchasers, the CP Conduit Purchasers and the Funding
Agents, pursuant to a Receivables Transfer Agreement dated as of December 20,
2001." Each Seller shall, upon request of the Purchaser, obtain such additional
search reports as the Purchaser shall reasonably request. To the fullest extent
permitted by applicable law, the Purchaser shall be permitted to sign and file
continuation statements and amendments thereto and assignments thereof without
any Seller's signature. Carbon, photographic or other reproduction of this
Agreement or any financing statement shall be sufficient as a financing
statement.
(d) It is the express intent of the Sellers and the Purchaser that each
conveyance of the Receivables by a Seller to the Purchaser pursuant to this
Agreement be construed as a sale of such Receivables by such Seller to the
Purchaser. Further, it is not the intention of the Sellers and the Purchaser
that such conveyance be deemed a grant of a security interest in the Receivables
by any Seller to the Purchaser to secure a debt or other obligation of such
Seller. However, in the event that, notwithstanding the intent of the parties,
any Seller's Receivables are construed to constitute property of the applicable
Seller, then (i) this Agreement also shall be deemed to be, and hereby is, a
security agreement within the meaning of the Relevant UCC or other applicable
laws; and (ii) any of the conveyances by a Seller provided for in this Agreement
shall be deemed to be, and such Seller hereby grants to the Purchaser, a
security interest in, to and under all of
3
such Seller's right, title and interest in, to and under such Seller's
Receivables, together with all Related Security and Collections with respect
thereto and all Proceeds of the foregoing (the "Seller Property"), to secure the
rights of the Purchaser set forth in this Agreement or as may be determined in
connection therewith by applicable law. The Sellers and the Purchaser shall, to
the extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Receivables, such security interest would be deemed to be a perfected
security interest in favor of the Purchaser under applicable law and will be
maintained as such throughout the term of this Agreement.
Confirmation of Prior Sales. The parties hereto hereby confirm all prior
sales or purported sales of Receivables under the Original Agreement prior to
the Restatement Date.
ARTICLE III
CONSIDERATION AND PAYMENT; REPORTING; ADMINISTRATION
Purchase Price. The purchase price for the Receivables and related property
conveyed to the Purchaser by the Sellers under this Agreement on any Business
Day shall be a Dollar amount equal to the product of (i) the aggregate
Outstanding Balance of the Receivables sold on such Business Day, and (ii) the
then applicable Discount Percentage (the "Purchase Price"); provided, that
nothing herein shall be deemed to modify the determination of the Purchase Price
for Receivables sold pursuant to the Original Agreement as provided therein.
SECTION III.2. Payment of Purchase Price.
(a) The Purchase Price for each Receivable sold hereunder on any Business
Day shall be paid or provided for on the Business Day on which such sale
occurred (i) by payment in immediately available funds to the extent the
Purchaser has such funds available in excess of necessary working capital and
(ii) to the extent such funds are not available, by increasing the principal
amount due under the applicable Seller Note (by notation on the grid attached
thereto by the Collection Agent; provided, that the failure to make any such
notation or any error in such grid shall not adversely affect any Seller's
rights) in an aggregate principal amount up to the remaining portion of the
Purchase Price (each, an "Advance"); provided, however, that the aggregate
principal amount of all Seller Notes on any Business Day shall not exceed 49% of
(x) the aggregate Purchase Price of the Receivables purchased hereunder existing
on such Business Day minus (y) an amount equal to the Net Investment (the
"Advance Limit"). To the extent that the Purchaser does not have sufficient cash
or availability under the Seller Note to pay the total Purchase Price for
Receivables sold on any Business Day in full, C&A, to the extent Purchase Price
is owing, may, at its option, make a capital contribution of cash and/or
Receivables and Related Security to the Purchaser. No sales of Receivables by a
Seller shall be made hereunder on and after the Purchase Termination Date
relating to such Seller.
(b) The Receivables with respect to which the Purchase Price therefor is
paid pursuant to Section 3.2(a)(i) and (ii) are referred to herein as "Purchased
Receivables" and the Receivables with respect to which the Purchase Price
therefor is paid pursuant to the second
4
sentence of Section 3.2(a) are referred to herein as "Contributed Receivables."
The Purchased Receivables and the Contributed Receivables are collectively
referred to herein as the "Transferred Receivables."
(c) The Collection Agent shall be responsible, in its sole discretion but
in accordance with subsection 3.2(a), for allocating among the Sellers the
payment of the Purchase Price for Receivables either in the form of cash
received from the Purchaser or as an addition to the principal amount of the
applicable Seller Note. The Purchaser shall be entitled to pay all amounts in
respect of the Purchase Price of Receivables and Related Security to an account
of the Collection Agent for allocation by the Collection Agent to the Sellers,
and each of the Sellers hereby appoints the Collection Agent as its agent for
the purposes of receiving such payments and making such allocations and hereby
authorizes the Purchaser to make all payments due to such Seller directly to, or
as directed by, the Collection Agent. The Collection Agent hereby accepts and
agrees to such appointment. All payments under this Agreement shall be made not
later than 3:00 p.m. (New York City time) on the date specified therefor in U.S.
dollars in same day funds or by check, as the Collection Agent shall elect and
to the bank account designated in writing by the Collection Agent to the
Purchaser.
SECTION III.3. Reports.
(a) Each Seller will furnish to the Collection Agent all information with
respect to the Receivables sold by such Seller under this Agreement required by
the Collection Agent in order to complete the Daily Reports, Weekly Reports and
Settlement Statements to be delivered by the Collection Agent pursuant to the
Receivables Transfer Agreement. Each delivery of a Daily Report, Weekly Report
and Settlement Statement by the Collection Agent shall be deemed to be a
representation and warranty by each Seller that all information set forth in
those reports with respect to the Receivables sold by such Seller under this
Agreement and Collections thereof is true and correct as of the date of such
report.
(b) Each Seller shall maintain records which shall track on each Business
Day the Outstanding Balance of Receivables sold to the Purchaser on each
Business Day and the application of the proceeds of such sales received from the
Purchaser (including, without limitation, for the purchase of additional
Receivables of such Seller and the repayment of the related Seller Note).
Collections on Receivables. Any payment by an Obligor in respect of any
indebtedness owed by it to the Purchaser or a Seller shall, except as provided
in Article VI or as otherwise specified by such Obligor or otherwise required by
contract or law, be applied as a Collection of any Receivable of such Obligor
(in order of the age of such Receivable, starting with the oldest such
Receivable) to the extent of any amounts then due and payable thereunder before
being applied to any other receivable or other indebtedness of such Obligor.
5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Sellers' Representations and Warranties. Each Seller severally represents
and warrants to the Purchaser as of the related Seller Effective Date and on
each Business Day on which Receivables are sold hereunder by it with respect to
itself:
(a) Corporate Existence and Power. Such Seller is a corporation or limited
liability company duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation or formation and has all corporate
or limited liability company power and all material governmental licenses,
authorizations, consents and approvals required to carry on its business in each
jurisdiction in which its business is now conducted, except where the failure to
obtain such licenses, authorizations, consents and approvals would not have a
Material Adverse Effect. Such Seller is duly qualified to do business in, and is
in good standing in, every other jurisdiction in which the nature of its
business requires it to be so qualified, except where the failure to be so
qualified or in good standing would not have a Material Adverse Effect.
(b) Organizational and Governmental Authorization; Contravention. The
execution, delivery and performance by such Seller of the Transaction Documents
to which it is a party (i) are within such Seller's corporate or limited
liability company powers, (ii) have been duly authorized by all necessary
corporate or limited liability company action, (iii) require no action by or in
respect of, or filing with, any Official Body or official thereof (except for
the filing of UCC financing statements or similar filings under applicable law
as required by this Agreement or as have been taken or filed and, with respect
to filings other than UCC financing statements or similar filings under
applicable law, filings where the failure to file will not have a Material
Adverse Effect), (iv) do not contravene, or constitute a default under, any
provision of applicable Law or of the Certificate of Incorporation, Articles or
Bylaws (or, in the case of a limited liability company, certificate of formation
or limited liability company agreement), as applicable, of such Seller, (v) do
not contravene or constitute a default under any agreement or other instrument
binding upon such Seller except where such contravention or default would not
have a Material Adverse Effect, or (vi) result in the creation or imposition of
any Adverse Claim (other than Permitted Encumbrances) on the assets of such
Seller or any of its Affiliates.
(c) Valid Sale; Binding Effect. Each purchase of Receivables and Related
Security by the Purchaser hereunder shall constitute a valid sale and assignment
by the applicable Seller to the Purchaser, enforceable against creditors of, and
purchasers from, such Seller. Each of the Transaction Documents to which such
Seller is a party will constitute the legal, valid and binding obligation of
such Seller, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, moratorium or other similar laws affecting the rights of
creditors and general equitable principles (whether considered in a proceeding
at law or in equity). The security interest granted to the Purchaser by such
Seller pursuant to Section 2.1(d) will at all times be a fully perfected first
priority security interest in and to the Seller Property transferred by such
Seller.
6
(d) Quality of Title. Immediately preceding the sale by it of Receivables,
Related Security, Collections with respect thereto and all Proceeds of the
foregoing pursuant to this Agreement, such Seller was the sole owner of all of
its Receivables, free and clear of all Adverse Claims (other than Permitted
Encumbrances). On or prior to the related Seller Effective Date and on or prior
to each Business Day on which Receivables are sold by it hereunder, (i) all
financing statements and other documents required to be recorded or filed in
order to perfect and protect the interest of the Purchaser in, to and under the
Receivables against all creditors of and purchasers from the applicable Seller
will have been duly filed in each filing office necessary for such purpose and
all filing fees and taxes, if any, payable in connection with such filings shall
have been paid in full, and (ii) Purchaser will either acquire (A) valid title
to and the sole record and beneficial ownership in, or (B) a first priority
perfected security interest in, each such Receivable purchased, assigned or
otherwise acquired on such date, in each case free and clear of any Adverse
Claim (other than Permitted Encumbrances) or restrictions on transferability.
None of the Seller Property has been sold, assigned or otherwise disposed of
other than pursuant hereto and the Receivables Transfer Agreement and there are
no Adverse Claims (other than Permitted Encumbrances) upon or with respect to
the Seller Property.
(e) Material Adverse Effect. Commencing on the last day of the 1998 fiscal
year of C&A and ending on the Restatement Date, (i) such Seller has not incurred
any obligations, contingent or non-contingent liabilities, liabilities for
charges, long-term leases or unusual forward or long-term commitments that,
alone or in the aggregate, could reasonably be expected to have a Material
Adverse Effect, (ii) no contract, lease or other agreement or instrument has
been entered into by such Seller or has become binding upon such Seller's assets
and no law or regulation applicable to such Seller has been adopted that has had
or could reasonably be expected to have a Material Adverse Effect on such
Seller, and (iii) such Seller is not in default and to the knowledge of such
Seller, no third party is in default under any material contract, lease or other
agreement or instrument to which such Seller is a party that alone or in the
aggregate could reasonably be expected to have a Material Adverse Effect.
Commencing on the last day of the 2000 fiscal year of C&A and ending on the
Restatement Date no event has occurred that alone or together with other events
could reasonably be expected to have a Material Adverse Effect.
(f) Accuracy of Information. All information heretofore furnished by such
Seller to the Purchaser and the Funding Agents for purposes of or in connection
with this Agreement, any other Transaction Document, or any transaction
contemplated hereby or thereby is, and all such information hereafter furnished
by such Seller to the Purchaser, the Funding Agents, the Committed Purchasers
and the CP Conduit Purchasers will be, true and accurate in every material
respect, on the date such information is stated or certified.
(g) Tax Status. Such Seller has withheld or deducted and remitted all
amounts required to be withheld or deducted and remitted by the applicable
legislation, and has filed all tax returns (Federal, state, provincial and
local) required to be filed by it and has paid or made adequate provision for
the payment of all taxes, assessments and other governmental charges (including
for such purposes, the setting aside of appropriate reserves for taxes,
assessments and other governmental charges being contested in good faith).
7
(h) Action, Suits. There are not any actions, suits or proceedings at law
or in equity or by or before any court, arbitrator or other Official Body now
pending or, to the knowledge of such Seller, threatened against or affecting
such Seller or any Affiliate of such Seller, or any property or rights of such
Seller or any Affiliate of such Seller, as to which there is a reasonable
possibility of an adverse determination and which (i) if adversely determined,
could individually or in the aggregate result in a Material Adverse Effect, (ii)
involve the Transaction Documents or (iii) if adversely determined could
materially adversely affect the transactions contemplated by the Transaction
Documents.
(i) Place of Business. The principal place of business and chief executive
office of such Seller are located at the addresses described on Exhibit A
hereof, and the offices where such Seller keeps all of its Records and Related
Security thereof are located at the addresses described on Exhibit A hereof, or
such other locations notified to the Purchaser in accordance with this Agreement
in jurisdictions where all action required by the terms of this Agreement has
been taken and completed.
(j) Solvency. Both before and after giving effect to (i) the transactions
contemplated by the Transaction Documents and (ii) the payment and accrual of
all Transaction Costs in connection with the foregoing, such Seller is not and
will not be insolvent, does not, and will not, have unreasonably small capital
with which to carry on its business, is, and will be, able to pay its debts
generally as they become due and payable, and its liabilities do not, and will
not, exceed its assets.
(k) Tradenames, Etc. As of the Restatement Date: (i) such Seller's chief
executive office is located at the address for notices set forth in Section 10.3
hereof; (ii) such Seller has only the subsidiaries and divisions listed on
Exhibit H to the Receivables Transfer Agreement, and such Seller and such
subsidiaries have, within the last five (5) years, operated only under the trade
names identified in Exhibit H to the Receivables Transfer Agreement; and (iii)
within the last five (5) years, neither such Seller nor any such subsidiaries
has changed its name, merged with or into or consolidated with any other Person
or been the subject of any proceeding under ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code
(Bankruptcy), except as disclosed in Exhibit H to the Receivables Transfer
Agreement.
(l) Nature of Receivables. Each Receivable sold by such Seller to the
Purchaser hereunder is an Eligible Receivable, other than Receivables sold on
the Restatement Effective Date which the Seller reported at the time of sale as
not being Eligible Receivables, provided that no representation is made under
this paragraph (l) with respect to clause (ii) of the definition of "Eligible
Obligor" or clause (9) of the definition of "Eligible Receivable" (other than
the portion of such clause (9) prior to the proviso in such clause).
(m) Credit and Collection Policy. Since the end of the Seller's fiscal
period ending in September 1999 (or, if later, since the date such Seller was
added as a Seller hereunder), there have been no material changes in the Credit
and Collection Policy other than as permitted hereunder. Since such date, no
material adverse change has occurred in the overall rate of collection of the
Receivables sold by it.
8
(n) Collections and Servicing. Since the end of the Seller's fiscal period
ending in September 1999 (or, if later, since the date such Seller was added as
a Seller hereunder), there has been no material adverse change in the ability of
such Seller to service and collect its Receivables.
(o) Binding Effect of Receivables and Contract. Each Receivable and related
Contract sold by it constitutes a legal, valid and binding obligation of the
related Obligor, enforceable against the related Obligor, subject to applicable
bankruptcy, insolvency, moratorium or similar laws affecting the rights of
creditors and general equity principles (whether considered in a proceeding at
law or in equity).
(p) Not an Investment Company. Such Seller is not, nor is such Seller
controlled by, an "investment company" or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company," within the
meaning of the Investment Company Act of 1940, as amended, or is exempt from all
provisions of such Act.
(q) ERISA. To the extent applicable, such Seller and its ERISA Affiliates
are in compliance in all material respects with ERISA and the provisions of the
Code that are applicable to ERISA, and no lien exists in favor of the Pension
Benefit Guaranty Corporation on any of the Receivables. There are no pending or,
to the knowledge of such Seller, threatened claims (other than claims for
benefits in the normal course), sanctions, actions or lawsuits, asserted or
instituted against such Plan of such Seller or its ERISA Affiliates or any
Person as fiduciary or sponsor of any such Plan of such Seller or its ERISA
Affiliates. No ERISA Event has occurred with respect to Title IV Plans of such
Seller or its ERISA Affiliates that have an aggregate Unfunded Pension Liability
equal to or greater than $10,000,000.
(r) Lockbox Accounts. The names and addresses of all the Lockbox Banks,
together with the account numbers of the Lockbox Accounts at such Lockbox Banks,
are specified in Exhibit B to the Receivables Transfer Agreement (or at such
other Lockbox Banks and/or with such other Lockbox Accounts, as have been
notified to the Administrative Agent and for which Lockbox Agreements have been
executed in accordance with Section 2.09(b) of the Receivables Transfer
Agreement and delivered to the Collection Agent, the Administrative Agent and
the Funding Agents). All Obligors (or their designees) have been instructed to
cause all payments to be made to a Lockbox Account.
(s) Bulk Sales. No transaction contemplated by this Agreement or the other
Transaction Documents requires compliance with any bulk sales act or similar
law.
(t) Full Disclosure. No information contained in this Agreement, any of the
other Transaction Documents, the Rating Agency Confidential Information
Memorandum, or, since January 1, 2001, any registration statement or annual,
quarterly, monthly or other regular report which such Seller or any of its
Affiliates filed with the Securities and Exchange Commission contains any untrue
statement of a material fact (taken as a whole) nor has such Seller or its
Affiliates failed to provide to the Purchaser, the Administrative Agent, the
Committed Purchasers, the CP Conduit Purchasers or the Funding Agents any
material information necessary to make information provided by such Seller or
its Affiliates in such documents or
9
filings (taken as a whole) not misleading in any material respect in light of
the circumstances under, and for the purposes for, which such information was
provided; provided, however, that this representation or warranty shall not
relate to any projections or forward looking statements in any such documents
provided by such Seller or its Affiliates.
Reaffirmation of Representations and Warranties by the Sellers; Notice of
Breach. On the related Seller Effective Date and on each Business Day on which
Receivables are sold by a Seller hereunder, such Seller shall be deemed to have
certified that all representations and warranties described in Section 4.1 are
true and correct on and as of such day as though made on and as of such day. The
representations and warranties set forth in Section 4.1 shall survive (i) the
conveyance of the Receivables to the Purchaser, (ii) the termination of the
rights and obligations of the Purchaser and the Sellers under this Agreement and
(iii) the termination of the rights and obligations of the Transferor, C&A, the
Administrative Agent and the Funding Agents under the Receivables Transfer
Agreement. Upon discovery by the Purchaser or any Seller of a breach of any of
the foregoing representations and warranties, the party discovering such breach
shall give written notice to the others by the end of the Business Day of such
discovery.
ARTICLE V
COVENANTS OF THE SELLERS
Covenants of the Sellers. Each Seller hereby covenants and agrees with the
Purchaser that, for so long as this Agreement is in effect, and until all
Receivables which have been sold to the Purchaser pursuant hereto, shall have
been paid in full or written off as uncollectible, and all amounts owed by such
Seller pursuant to this Agreement have been paid in full, unless the Purchaser
otherwise consents in writing, such Seller covenants and agrees as follows:
(a) Conduct of Business. Such Seller will, and will cause each of its
Subsidiaries to, (i) carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted and do all things necessary to remain duly incorporated or formed,
validly existing and in good standing as a domestic corporation or limited
liability company in its jurisdiction of incorporation or formation, (ii)
maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted to the extent that the failure to maintain such
authority would have a Material Adverse Effect, and (iii) maintain its principal
place of business and chief executive office and the office at which it keeps
its Records and Related Security at the locations specified in Exhibit A, or
upon 30 days' prior written notice to the Purchaser, at such other locations in
a jurisdiction where all action requested by the Purchaser and the
Administrative Agent pursuant to Section 4.1(d) shall have been taken with
respect to the Receivables and Related Security.
(b) Compliance with Laws. Such Seller will, and will cause each of its
Subsidiaries to (i) comply in all material respects with all Laws to which it
may be subject and (ii) perform each of its obligations under the Transaction
Documents, except, in each case, where the failure to so comply would not have a
Material Adverse Effect.
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(c) Furnishing of Information and Inspection of Records. Such Seller will
furnish to the Purchaser from time to time such information with respect to such
Seller's Receivables as the Purchaser may reasonably request, including, without
limitation, listings identifying the Obligors and the Outstanding Balance for
each of its Receivables, together with an aging of such Receivables. Such Seller
will, at any time and from time to time during regular business hours and upon
reasonable notice permit the Purchaser, any Funding Agent, or their agents or
representatives, (i) to examine and make copies of and abstracts from all
Records and (ii) to visit the offices and properties of such Seller for the
purpose of examining such Records, and to discuss matters relating to its
Receivables or such Seller's performance hereunder and under the other
Transaction Documents to which such Seller is a party with any of the officers,
directors, employees or independent public accountants of such Seller having
knowledge of such matters. Upon a Potential Termination Event or Termination
Event, the Committed Purchasers, CP Conduit Purchasers, Funding Agents and
Administrative Agent shall, without notice, have immediate access to all Records
and to visit the offices and properties of each Seller.
(d) Keeping of Records and Books of Account. Such Seller will maintain a
system of accounting established and administered in accordance with GAAP,
consistently applied, and will maintain and implement administrative and
operating procedures (including, without limitation, an ability to recreate
records evidencing Receivables in the event of the destruction of the originals
thereof), and keep and maintain, or obtain, as and when required, all Records
and all documents, books, records and other information reasonably necessary or
advisable for the collection of all Receivables (including, without limitation,
(i) records adequate to permit the daily identification of each Receivable and
all Collections of and adjustments to each existing Receivable and (ii) records
of all payments received, credits granted and merchandise returned with respect
thereto). Such Seller will give the Purchaser prompt notice of any material
change in the administrative and operating procedures referred to in the
previous sentence.
(e) Communication with Accountants. Such Seller authorizes the Purchaser,
the Collection Agent, the Administrative Agent and each Funding Agent to
communicate directly with its independent certified public accountants, and
authorizes and shall instruct those accountants and advisors to disclose and
make available to the Purchaser, the Collection Agent, the Administrative Agent
and each Funding Agent any and all financial statements and other supporting
financial documents, schedules and information relating to such Seller
(including copies of any issued management letters) with respect to the
business, financial condition and other affairs of such Seller. Such Seller
agrees to render the Purchaser, the Collection Agent, the Administrative Agent
and each Funding Agent at such Person's own cost and expense, such clerical and
other assistance as may be reasonably requested with regard to the foregoing. If
any Potential Termination Event or Termination Event shall have occurred and be
continuing, such Seller shall, promptly upon request therefor, assist the
Purchaser in delivering to the Administrative Agent and the Funding Agents
Records reflecting activity through the close of business on the Business Day
immediately preceding the date of such request.
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(f) Performance and Compliance with Receivables and Contracts. Such Seller
at its expense will timely and fully perform and comply with all material
provisions, covenants and other promises required to be observed by it under the
Contracts related to the Receivables.
(g) Credit and Collection Policy. Such Seller will comply in all material
respects with the Credit and Collection Policy in regard to each Receivable and
the related Contract.
(h) Collections. Such Seller shall instruct all Obligors (or their
designees) to cause all Collections to be deposited directly to a Lockbox
Account.
(i) Collections Received. Such Seller shall hold in trust, and deposit
immediately (but in any event no later one Business Day following its receipt
thereof) to a Lockbox Account all Collections received from time to time by such
Seller.
(j) Sale Treatment. Such Seller agrees to treat each conveyance hereunder
for all purposes (including, without limitation, tax and financial accounting
purposes) as a sale and, to the extent any such reporting is required, shall
report the transactions contemplated by this Agreement on all relevant books,
records, tax returns, financial statements and other applicable documents as a
sale of the Receivables to the Purchaser.
(k) No Sales, Liens, Etc. Except as otherwise provided herein, such Seller
will not (i) sell, assign (by operation of law or otherwise) or otherwise
dispose of, or create any Adverse Claim (other than Permitted Encumbrances) upon
or with respect to (or file any financing statement in respect of) (A) any of
its Receivables, Related Security, Collections or Proceeds with respect thereto
or (B) any Lockbox Account to which any Collections of any Receivable are sent
(including the assignment of any right to receive income in respect thereof), or
(ii) sell, assign (by operation of law or otherwise) or otherwise dispose of, or
create any Adverse Claim (other than Permitted Encumbrances) upon or with
respect to (or file any financing statement in respect of) any inventory or
goods, the sale of which may give rise to a Collection.
(l) No Extension or Amendment of Receivables. Such Seller will not extend,
amend, discharge or otherwise modify the terms of any Receivable, or amend,
modify or waive any term or condition of any Contract related thereto, except in
accordance with the Transaction Documents and as contemplated by the Credit and
Collection Policy, without the prior written consent of the Purchaser and each
Funding Agent (which consent shall be obtained by the Administrative Agent).
(m) No Change in Business or Credit and Collection Policy. Except as
provided in the Receivables Transfer Agreement, such Seller will not make any
change in the character of its business or in the Credit and Collection Policy,
which change would, in either case, impair the collectibility of any Receivable
or otherwise have a Material Adverse Effect.
(n) No Mergers, Etc. Such Seller will not, without the prior written
consent of each Funding Agent (which consent shall be obtained by the
Administrative Agent), (i) consolidate or merge with or into any other Person,
or (ii) sell, lease or transfer all or
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substantially all of its assets to any other Person; provided, that a Seller may
merge with or into another Seller or with another Person if (A)(1) such Seller
is the corporation surviving such consolidation or merger or (2) the Person into
or with which the Seller is merged or consolidated is (x) an Affiliate, (y) a
corporation organized and existing under the laws of the United States of
America or any state or the District of Columbia (or, in the case of the
Canadian Sellers, Canada or any of its provinces), and (z) assumes in writing
all duties and liabilities of the Seller under the Transaction Documents and (B)
immediately after and giving effect to such consolidation or merger, no
Termination Event or Potential Termination Event shall have occurred and be
continuing under the Receivables Transfer Agreement.
(o) Change in Payment Instructions to Obligors; Deposits to Lockbox
Accounts. Such Seller will not add or terminate, or make any change to, any
Lockbox Account, except in accordance with the Receivables Transfer Agreement.
Such Seller will use reasonable commercial efforts to not deposit or otherwise
credit, or cause or permit to be so deposited or credited, to any Lockbox
Account, cash or cash proceeds other than Collections of Receivables and in any
event shall segregate, or cause to be segregated, any such cash or cash proceeds
from Collections within two (2) Business Days of deposit or credit to any
Lockbox Account.
(p) Change of Name, Etc. Such Seller shall not change its name, the state
of its formation, its structure or the location of its chief executive office,
unless at least ten (10) days prior to the effective date of any such change
such Seller delivers to the Purchaser and the Administrative Agent (i) such
documents, instruments or agreements, executed by such Seller as are necessary
to reflect such change and to continue the perfection of the Purchaser's
interest in the Receivables, Related Security, Collections and Proceeds with
respect thereto (provided, that such Seller shall be required to file under the
Relevant UCC any such documents that are financing statements), and (ii) new or
revised Lockbox Agreements executed by the Lockbox Banks which reflect such
change and enable the Administrative Agent, on behalf of the Funding Agents, the
Committed Purchasers and the CP Conduit Purchasers, to exercise its rights under
the Transaction Documents.
(q) Indemnification. Such Seller severally agrees to indemnify, defend and
hold the Purchaser harmless from and against any and all loss, liability,
damage, judgment, claim, deficiency, or expense (including interest, penalties,
reasonable attorneys' fees and amounts paid in settlement) to which the
Purchaser may become subject insofar as such loss, liability, damage, judgment,
claim, deficiency, or expense arises out of or is based upon a breach by such
Seller of its representations, warranties and covenants contained herein, or any
information certified in any schedule or certificate delivered by such Seller
hereunder or in connection with the Transaction Documents, being untrue in any
material respect at any time; provided that in no event shall this Section 5.
1(q) be construed to require a Seller to indemnify the Purchaser for amounts
related to the uncollectibility of any Receivable for credit-related reasons
pertaining to the related Obligor, including, but not limited to, amounts that
are required to be returned to the related Obligor as a voidable preference. Any
indemnification pursuant to this Section 5.1(q) shall be had only from the
assets of the Sellers and shall not be payable from Collections, except to the
extent such Collections are released to a Seller in accordance with the
Receivables Transfer Agreement. The obligations of any Seller under this Section
5.1(q) shall be considered to have been relied upon
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by the Purchaser and shall survive the execution, delivery, performance and
termination of this Agreement for a period of three (3) years following the
Purchase Termination Date relating to such Seller, regardless of any
investigation made by the Purchaser or on its behalf.
(r) ERISA.
(i) To the extent applicable, such Seller will not (A) engage or
permit any of its ERISA Affiliates to engage in any prohibited transaction
(as defined in Section 4975 of the Code and Section 406 of ERISA) for which
an exemption is not available or has not previously been obtained from the
U.S. Department of Labor; (B) fail to make any payments to any
Multiemployer Plan that such Seller or any ERISA Affiliate of such Seller
is required to make under the agreement relating to such Multiemployer Plan
or any law pertaining thereto; (C) terminate any Benefit Plan so as to
result in any liability; or (D) permit to exist any occurrence of any
reportable event described in Title IV of ERISA, if such prohibited
transactions, failures to make payment, terminations and reportable events
described in clauses (A), (B), (C) and (D) above would in the aggregate
have a Material Adverse Effect.
(ii) To the extent applicable, such Seller will not permit to exist
any accumulated funding deficiency (as defined in Section 302(a) of ERISA
and Section 412(a) of the Code) or funding deficiency with respect to any
Benefit Plan other than a Multiemployer Plan.
(iii) To the extent applicable, such Seller will not cause or permit
it or any of its ERISA Affiliates to cause or permit the occurrence of an
ERISA Event with respect to Title IV Plans of such Seller or its ERISA
Affiliates that have an aggregate Unfunded Pension Liability equal to or
greater than $10,000,000.
(s) Insurance. Except to the extent failure to do so would not reasonably
be expected to cause a Material Adverse Effect, such Seller shall (i) keep its
insurable properties adequately insured at all times by financially sound and
responsible insurers and maintain such other insurance, to such extent and
against such risks, including fire and other risks insured against by extended
coverage, as is customary with companies of the same or similar size in the same
or similar businesses, (ii) maintain in full force and effect public liability
insurance against claims for personal injury or death or property damage
occurring upon, on, about or in connection with the use of any properties owned,
occupied or controlled by it or any of its Subsidiaries, as the case may be, in
such amounts and with such deductibles as are customary with companies of the
same or similar size in the same or similar businesses and in the same
geographic area and (iii) maintain such other insurance as may be required by
Law, and will cause each of its Subsidiaries to do so.
(t) Notice of Material Event. Such Seller shall promptly inform the
Purchaser in writing of the occurrence of any event, circumstance or condition
that has had or could reasonably be expected to have a Material Adverse Effect
with respect to such Seller, in each case setting forth the details thereof and
what action, if any, such Seller proposes to take with respect thereto.
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(u) Capital Structure and Business. No Seller shall: (i) make any changes
in any of its business objectives, purposes or operations that could have or
result in a Material Adverse Effect or (ii) amend, supplement or otherwise
modify its certificate or articles of incorporation or bylaws (or, in the case
of a limited liability company, its certificate of formation or limited
liability company agreement) in a manner that could have or result in a Material
Adverse Effect.
(v) Separate Existence. Such Seller shall at all times:
(i) maintain its own deposit account or accounts, separate from those
of the Purchaser, with commercial banking institutions and ensure that the
funds of such Seller will not be diverted to the Purchaser or for other
than corporate or limited liability company uses of such Seller, nor will
such funds be commingled with the funds of the Purchaser;
(ii) to the extent that it shares the same officers or other employees
with the Purchaser, the salaries of and the expenses related to providing
benefits to such officers and other employees shall be fairly allocated
among such Seller and the Purchaser, and each such entity shall bear its
fair share of the salary and benefit costs associated with all such common
officers and employees;
(iii) to the extent that it jointly contracts with the Purchaser to do
business with vendors or service providers or to share overhead expenses,
the costs incurred in so doing shall be allocated fairly among such Seller
and the Purchaser, and each such entity shall bear its fair share of such
costs. To the extent that the Seller contracts or does business with
venders or service providers where the goods and services provided are
partially for the benefit of the Purchaser, the costs incurred in so doing
shall be fairly allocated to or among such Seller and the Purchaser for
whose benefit the goods or services are provided, and each such entity
shall bear its fair share of such costs;
(iv) enter into all material transactions between the Seller and the
Purchaser, whether currently existing or hereafter entered into, only on an
arm's length basis, it being understood and agreed that the transactions
contemplated in the Transaction Documents meet the requirements of this
clause (iv);
(v) maintain office space separate from the office space of the
Purchaser and, to the extent that the Seller and the Purchaser have offices
in the same location, there shall be a fair and appropriate allocation of
overhead costs among them, and each such entity shall bear its fair share
of such expenses;
(vi) issue separate financial statements prepared not less frequently
than quarterly and prepared in accordance with GAAP;
(vii) conduct its affairs strictly in accordance with its certificate
of incorporation or limited liability company agreement, as applicable, and
observe all necessary, appropriate and customary corporate or limited
liability company formalities, as the case may be, including, but not
limited to, holding all regular and special meetings
15
of stockholders, directors and/or members appropriate to authorize all
corporate or limited liability company action, keeping separate and
accurate minutes of its meetings, passing all resolutions or consents
necessary to authorize actions taken or to be taken, and maintaining
accurate and separate books, records and accounts, including, but not
limited to, payroll and intercompany transaction accounts;
(viii) not assume or guarantee any of the liabilities of the
Purchaser; and
(ix) 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
comply with this Section 5.1(v).
ARTICLE VI
REPURCHASE OBLIGATION
Mandatory Repurchase.
(a) Breach of Warranty. If, on any day, any Receivable which has been sold
by any Seller hereunder and which has not been reported by such Seller as not
being an Eligible Receivable, shall fail to meet the conditions set forth in the
definition of Eligible Receivable on the date of such sale, such Seller shall be
deemed to have received on such day a Collection of such Receivable in full and
shall on such day pay to the Purchaser an amount equal to the aggregate
Outstanding Balance of such Receivable, and on the date of payment such Seller
shall accept the reconveyance of such Receivable.
(b) Reconveyance Under Certain Circumstances. Each Seller agrees that, if
on any date the Administrative Agent, a Funding Agent or the Transferor notifies
such Seller or such Seller discovers that any of the representations and
warranties made herein is untrue or incorrect with respect to a Receivable in
any material respect as of the date such representation or warranty was made or
such Seller shall breach any of its covenants set forth herein with respect to
any Receivable in any material respect, such Seller shall accept the
reconveyance of such Receivable on the date such representation or warranty was
made or such covenant was breached, as the case may be. In the event of a
reconveyance under this Section 6.1(b), the applicable Seller shall pay to the
Purchaser in immediately available funds on such date of reconveyance an amount
equal to the Outstanding Balance of any such Receivable.
Dilutions, Etc. Each Seller agrees that if on any day the Outstanding
Balance of a Receivable which has been sold by such Seller hereunder is either
(x) reduced as a result of defective, rejected or returned goods or other
dilution factor, any billing adjustment or other adjustment, or (y) reduced or
canceled as a result of (i) a setoff or offset in respect of any claim by any
Person (whether such claim arises out of the same or a related transaction or an
unrelated transaction), (ii) any action by any Federal or state taxing authority
or as a result of the payment by any Obligor of any portion of a Receivable
constituting a tax or governmental fee or charge to any Person other than the
Purchaser, or (iii) the enforcement or any other action in respect of any other
Permitted Encumbrance (other than with respect to clause (iv) of the definition
thereof);
16
then, in each case, such Seller shall be deemed to have received on such day a
collection of such Receivable in the amount of such reduction, cancellation or
payment made by the Obligor and shall on such day pay to the Purchaser an amount
equal to such reduction, cancellation or payment.
ARTICLE VII
CONDITIONS PRECEDENT
Conditions Precedent to Purchaser's Purchases of Receivables. The
obligations of the Purchaser to purchase the Receivables of a Seller on the
related Seller Effective Date and on any Business Day on which Receivables are
sold to the Purchaser by such Seller hereunder (and, other than paragraph (b)
below, the effectiveness of this Agreement as of the Restatement Date) shall be
subject to the satisfaction, severally with respect to each Seller, of the
following conditions:
(a) All representations and warranties of such Seller contained in this
Agreement shall be true and correct on the related Seller Effective Date and the
Restatement Date, as the case may be, and on the applicable Business Day of
sale, with the same effect as though such representations and warranties had
been made on such date (except to the extent such representations and warranties
relate solely to an earlier date, and then as of such earlier date);
(b) All information concerning the Receivables of such Seller provided to
the Purchaser shall be true and correct in all material respects as of the
related Seller Effective Date, in the case of any Receivables sold on such
Seller Effective Date, or the date such Receivables are sold to the Purchaser,
in the case of any Receivables created and sold by such Seller to the Purchaser
after the related Seller Effective Date;
(c) Such Seller shall have substantially performed all other obligations
required to be performed by the provisions of this Agreement and the other
Transaction Documents to which it is a party;
(d) Such Seller shall have either filed or caused to be filed the financing
statement(s) (or other similar instruments) required to be filed pursuant to
Section 2.1(b);
(e) All corporate or limited liability company and legal proceedings, and
all instruments in connection with the transactions contemplated by this
Agreement and the other Transaction Documents shall be satisfactory in form and
substance to the Purchaser, and the Purchaser shall have received from such
Seller copies of all documents (including, without limitation, records of
corporate or limited liability company proceedings) relevant to the transactions
herein contemplated as the Purchaser may reasonably have requested;
(f) On the later of the related Seller Effective Date and the Restatement
Date, such Seller shall deliver to the Purchaser and the Administrative Agent a
Weekly Report for the Weekly Settlement Period immediately preceding such date;
and
17
(g) The Purchase Termination Date with respect to such Seller shall not
have occurred.
Conditions Precedent to the Addition of a Seller. The obligation of the
Purchaser to purchase Receivables and Related Security hereunder from a
Subsidiary of C&A requested to be an additional Seller pursuant to Section 10.13
is subject to the conditions precedent that the Purchaser shall have received on
or before the date designated for the addition of such Seller (which, in the
case of Textron Automotive Interiors Inc., Textron Automotive Exteriors Inc.,
M&C Advanced Processes, Inc. and Textron Canada Limited, shall be, subject to
Section 7.3, the Restatement Date) (the "Seller Addition Date") and in form and
substance satisfactory to the Purchaser:
(a) Additional Seller Supplement. A supplement to this Agreement
substantially in the form of Exhibit C attached hereto (each, an "Additional
Seller Supplement"), with a copy for the Administrative Agent and each Funding
Agent, duly executed and delivered by such Seller;
(b) Secretary's Certificate. A certificate of the Secretary or an Assistant
Secretary of such Seller, dated the related Seller Addition Date, and certifying
(i) that attached thereto is a true and complete copy of the articles of
incorporation and by-laws (or, in the case of a limited liability company, the
certificate of formation and limited liability company agreement) of such
Seller, as in effect on the Seller Addition Date and at all times since a date
prior to the date of the resolutions described in clause (ii) below, (ii) that
attached thereto is a true and complete copy of the resolutions, in form and
substance reasonably satisfactory to the Purchaser, of the Board of Directors of
such Seller or committees thereof authorizing the execution, delivery and
performance of this Agreement and the other Transaction Documents to which it is
a party and the transactions contemplated hereby and thereby, and that such
resolutions have not been amended, modified, revoked or rescinded and are in
full force and effect, (iii) that the certificate or articles of incorporation
or limited liability company agreement, as applicable, of such Seller has not
been amended since the date of the last amendment thereto shown on the
certificate of good standing (or its equivalent) furnished pursuant to
subsection (e) below and (iv) as to the incumbency and specimen signature of
each officer executing the Additional Seller Supplement and any other
Transaction Documents or any other document delivered in connection therewith on
behalf of such Seller (on which certificates the Purchaser may conclusively rely
until such time as the Purchaser shall receive from such Seller a revised
certificate with respect to such Seller meeting the requirements of this
subsection (b));
(c) Officer's Certificate. A certificate of a Responsible Officer of C&A,
dated the related Seller Addition Date, and certifying such Seller is in the
same or a related line of business as the existing Sellers as of the related
Seller Addition Date;
(d) Corporate Documents. The organizational documents, including all
amendments thereto, of such Seller, certified as of a recent date by the
Secretary of State or other appropriate authority of the state of incorporation
or formation, as the case may be;
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(e) Good Standing Certificates. Certificates of compliance, of status or of
good standing, dated as of a recent date, from the Secretary of State or other
appropriate authority of such jurisdiction, with respect to such Seller in each
state where the ownership, lease or operation of property or the conduct of
business requires it to qualify as a foreign corporation or limited liability
company, as the case may be, except where the failure to so qualify would not
have a Material Adverse Effect;
(f) Consents, Licenses, Approvals, Etc. A Certificate dated the related
Seller Addition Date of a Responsible Officer of such Seller either (i)
attaching copies of all consents (including, without limitation, consents under
loan agreements and indentures to which any Seller or its Affiliates are
parties), licenses and approvals required in connection with the execution,
delivery and performance by such Seller of the Additional Seller Supplement and
the validity and enforceability of the Additional Seller Supplement against such
Seller, and such consents, licenses and approvals shall be in full force and
effect or (ii) stating that no such consents, licenses and approvals are so
required;
(g) No Litigation. Confirmation that there is no pending or, to its
knowledge after due inquiry, threatened action or proceeding affecting such
Seller or any of its Subsidiaries before any Official Body that could reasonably
be expected to have a Material Adverse Effect;
(h) Lockboxes. A Lockbox Account with respect to Receivables to be sold by
such Seller shall have been established in the name of the Purchaser, each
invoice issued to an Obligor on and after the related Seller Addition Date shall
indicate that payments in respect of its Receivable shall be made by such
Obligor to a Lockbox Account or by wire transfer or other electronic payment to
a Lockbox Account or a Collection Account and the Collection Agent shall have
delivered with respect to each Lockbox Account a Lockbox Agreement signed by the
Purchaser, the Administrative Agent and the applicable Lockbox Bank;
(i) UCC Certificate; UCC Financing Statements. Executed copies of such
proper financing statements (or other similar instruments), filed and recorded
at such Seller's expense prior to the related Seller Addition Date, naming such
Seller as the seller and the Purchaser as the purchaser of the Receivables and
the Related Security, in proper form for filing in each jurisdiction in which
the Purchaser (or any of its assignees) deems it necessary or desirable to
perfect the Purchaser's ownership interest in all Receivables and Related
Security under the UCC or any comparable law of such jurisdiction;
(j) UCC Searches. Written search reports, listing all effective financing
statements (or other similar instruments) that name such Seller as debtor or
assignor and that are filed in the jurisdictions in which filings were made
pursuant to subsection (i) above and in any other jurisdictions that the
Purchaser (or any of its assignees) determines are necessary or appropriate,
together with copies of such financing statements (none of which, except for
those described in subsection (i) above, shall cover any Receivables or Related
Security), and tax and judgment lien searches showing no liens that are not
permitted by the Transaction Documents;
(k) List of Obligors. A microfiche, typed or printed list or other tangible
evidence reasonably acceptable to the Purchaser showing, as of a date acceptable
to the Purchaser prior to
19
the related Seller Addition Date, the Obligors whose Receivables are to be
transferred to the Purchaser and the balance of the Receivables with respect to
each such Obligor as of such date;
(l) Back-up Servicing Arrangements. Evidence that such Seller maintains
disaster recovery systems and back-up computer and other information management
systems that, in the Purchaser's reasonable judgment, are sufficient to protect
such Seller's business against material interruption or loss or destruction of
its primary computer and information management systems;
(m) Systems. Evidence, reasonably satisfactory to the Purchaser, the
Administrative Agent and each Funding Agent, that such additional Seller's
systems, procedures and record keeping relating to the Receivables remain in all
material respects sufficient and satisfactory in order to permit the purchase
and administration of the Receivables in accordance with the terms and intent of
this Agreement; and
(n) Additional Items. Such other approvals, opinions or documents as the
Purchaser (or any of its assignees) may reasonably request from such additional
Seller.
Conditions Precedent to Effectiveness of Restatement. The effectiveness of
this Agreement as amended and restated as of the Restatement Date shall be
subject to the conditions precedent that the Purchaser shall have received on of
before the Restatement Date and in form and substance satisfactory to the
Purchaser the items set forth in (i) with respect to each Seller other than
Textron Automotive Interiors Inc., Textron Automotive Exteriors Inc., M&C
Advanced Processes, Inc. and Textron Canada Limited, paragraphs (b), (d), (e),
(f), (g) and (n) of Section 7.2, and (ii) with respect to Textron Automotive
Interiors Inc., Textron Automotive Exteriors Inc., M&C Advanced Processes, Inc.
and Textron Canada Limited, each of paragraphs (b) through (n) of Section 7.2.
ARTICLE VIII
SELLER NOTE
Seller Note. On each Seller Effective Date, the Purchaser shall issue to
each related Seller a note substantially in the form of Exhibit B (each, as
amended, supplemented or otherwise modified from time to time, a "Seller Note");
provided, that by the execution of this Agreement, any Seller Notes existing
immediately prior to the Restatement Effective Date shall be deemed to be
restated to be in the form of Exhibit B hereto as of the Restatement Effective
Date. The aggregate principal amount of a Seller Note at any time shall be equal
to the difference between (a) the aggregate principal amount on the issuance
thereof and each addition to the principal amount of such Seller Note pursuant
to the terms of Section 3.2 as of such time, minus (b) the aggregate amount of
all payments made in respect of the principal of such Seller Note as of such
time. All payments made in respect of a Seller Note shall be allocated, first,
to pay accrued and unpaid interest thereon, and second, to pay the outstanding
principal amount thereof. Interest on the outstanding principal amount of a
Seller Note shall accrue at a rate per annum equal to the highest Base Rate in
effect during the applicable Settlement Period plus the
20
percentage agreed to from time to time by the applicable Seller, the Purchaser
and the Administrative Agent, which initially shall be 2%, from and including
the related Seller Effective Date, to but excluding the last day of each
Settlement Period and shall be paid (x) on each Settlement Date with respect to
the principal amount of the Seller Note outstanding from time to time during the
Settlement Period immediately preceding such Settlement Date and/or (y) on the
maturity date thereof; provided, however, that, to the maximum extent permitted
by law, accrued interest on a Seller Note which is not so paid shall be added,
at the request of such Seller, to the principal amount of such Seller Note.
Principal hereunder not paid or prepaid pursuant to the terms hereof shall be
payable on the maturity date of a Seller Note. Default in the payment of
principal or interest under a Seller Note shall not constitute a Purchase
Termination Event under this Agreement, a Collection Agent Default or a
Termination Event under the Receivables Transfer Agreement.
SECTION VIII.2. Subordination.
(a) No payment shall be made on, and no Seller shall make any claim for
payment on, any Seller Note until the date on which the Net Investment has been
reduced to zero and all accrued Discount, Servicing Fees and all other Aggregate
Unpaids have been paid in full, if a Potential Termination Event of a type
referred to in Section 7.01(e) of the Receivables Transfer Agreement, or a
Termination Event, has occurred and is continuing, or would occur as a result of
such payment, on such date. All payments made in respect of a Seller Note on any
date shall be payable by the Purchaser solely from funds available to the
Purchaser which are not otherwise needed or required on such date to be applied
to the payment of any amounts by the Purchaser pursuant to the Receivables
Transfer Agreement, and no Seller shall (i) have any claim except to the extent
of such amounts, (ii) have any additional recourse in respect thereof or (iii)
make any claim for payment in contravention of this Section 8.2. If any Seller
receives any payment in contravention of this Section 8.2, it shall hold such
funds in trust for the Administrative Agent and promptly turn over such funds
for application in accordance with the Receivables Transfer Agreement.
(b) Each Seller Note shall be fully subordinated to any rights of the
Administrative Agent, on behalf of the Funding Agents, the Committed Purchasers
and the CP Conduit Purchasers pursuant to the Receivables Transfer Agreement and
the Asset Purchase Agreements, and shall not evidence any rights in the
Receivables or Related Security.
Offsets, Etc. The Purchaser may offset any amount due and owing by a Seller
against any amount due and owing by Purchaser to such Seller under the terms of
the applicable Seller Note.
ARTICLE IX
TERM AND TERMINATION
Term. This Agreement shall commence as of the first day on which all of the
conditions precedent have been satisfied and shall continue in full force and
effect until the date
21
following the earlier of (i) with respect to any Seller, the date designated by
the Purchaser or C&A as the Purchase Termination Date for such Seller at any
time following ten (10) days' written notice to the other (with a copy thereof
to the Administrative Agent), (ii) with respect to all Sellers, the date on
which the Administrative Agent, on behalf of the Committed Purchasers and the CP
Conduit Purchasers, declares a Termination Event or a Potential Termination
Event pursuant to the Receivables Transfer Agreement, (iii) with respect to any
Seller, upon the occurrence of an Event of Bankruptcy with respect to either the
Purchaser or such Seller; (iv) with respect to any Seller, the date on which
either the Purchaser or such Seller becomes unable for any reason to purchase or
repurchase the interest of the Purchaser in any Receivable in accordance with
the provisions of this Agreement or defaults on its obligations hereunder, which
default continues unremedied for more than ten (10) days after written notice is
given to such Seller from the Purchaser (in case of inability or default of a
Seller) or to the Purchaser from such Seller (in the case of inability or
default of the Purchaser), (v) with respect to all Sellers, the day on which the
Collection Agent delivers a Weekly Report or a Daily Report that indicates that
C&A shall have permitted the Interest Coverage Ratio during any period set forth
in the definition of "Interest Coverage Ratio" to be less than the ratio set
forth in such definition for such period, or (vi) with respect to all Sellers,
the day on which the Collection Agent delivers a Weekly Report or a Daily Report
that indicates that C&A shall have permitted the Leverage Ratio during any
period set forth the definition of "Leverage Ratio" to be greater than the ratio
set forth in such definition for such period (any such date being a "Purchase
Termination Date"); provided, however, that the termination of this Agreement
with respect to any Seller or all Sellers pursuant to this Section 9.1 hereof
shall not discharge any Person from any obligations incurred prior to such
termination, including, without limitation, any obligations to make any payments
with respect to the interest of the Purchaser in any Receivable sold prior to
such termination or pursuant to Article VI.
Effect of Termination. Following the termination of this Agreement with
respect to any Seller pursuant to Section 9.1, such Seller shall not sell, and
the Purchaser shall not purchase, any interests in any Receivables of such
Seller. No termination, rejection or failure to assume the executory obligations
of this Agreement in any Event of Bankruptcy with respect to any Seller or the
Purchaser shall be deemed to impair or affect the obligations pertaining to any
executed sale or executed obligations, including, without limitation,
pre-termination breaches of representations, warranties or covenants by such
Seller or the Purchaser. Without limiting the foregoing, prior to termination,
the failure of any Seller to deliver computer records of its Receivables or any
reports regarding its Receivables shall not render such transfer or obligation
executory, nor shall the continued duties of the parties pursuant to this
Agreement render an executed sale executory.
SECTION IX.3. Termination of Sellers.
(a) If C&A wishes to terminate the sales of Receivables hereunder by any
Seller, then C&A shall submit a request (a "Seller Termination Request") to such
effect in writing to the Purchaser, which request shall be accompanied by a
certificate prepared by a Responsible Officer of the Collection Agent indicating
the Purchased Receivables Percentage applicable to such Seller as of the date of
submission of such request (the "Seller Termination Request Date").
22
Subject to the terms and provisions hereof and of the Receivables Transfer
Agreement, the relevant Seller shall be terminated as a Seller hereunder
immediately upon satisfaction of the conditions set forth in Section 10.14 of
the Receivables Transfer Agreement. From and after the date any such Seller is
terminated as a Seller pursuant to this subsection, the Seller shall cease
selling, and the Purchaser shall cease buying, Receivables and Related Security
from such Seller and a Purchase Termination Date shall be deemed to have
occurred with respect to such Seller.
(b) A terminated Seller shall have no further obligation under any
Transaction Document, other than pursuant to Sections 5.1(q), 6.1 and 6.2 of
this Agreement, with respect to Receivables previously sold by it to the
Purchaser.
ARTICLE X
MISCELLANEOUS PROVISIONS
Amendments, Etc. This Agreement and the rights and obligations of the
parties hereunder may not be amended, supplemented, waived or otherwise modified
except in an instrument in writing signed by the Purchaser and the Sellers and
consented to in writing by each Funding Agent (with the consent of the Required
Committed Purchasers); provided, however, the Administrative Agent may consent
(without the consent of the Funding Agents) to any amendments, waivers, or other
modifications in order to cure any ambiguities or correct any mistakes
hereunder. Any reconveyance executed in accordance with the provisions hereof
shall not be considered an amendment or modification to this Agreement.
Governing Law; Submission to Jurisdiction.
(a) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
(b) The parties hereto hereby submit to the nonexclusive jurisdiction of
the United States District Court for the Southern District of New York and of
any New York state court sitting in The City of New York for purposes of all
legal proceedings arising out of or relating to this agreement or the
transactions contemplated hereby. Each party hereto hereby irrevocably waives,
to the fullest extent it may effectively do so, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum. Nothing in this Section 10.2 shall affect
the right of the Purchaser to bring any other action or proceeding against any
Seller or its property in the courts of other jurisdictions.
Notices. All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered at
or mailed by registered mail, return receipt requested, to:
(a) in the case of the Purchaser:
23
CARCORP, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) in the case of C&A:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PRODUCTS CO.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Assistant Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(c) in the case of each other Seller: to the address set forth opposite
such Seller's name on Exhibit D or in the applicable Additional Seller
Supplement;
(d) in the case of any Funding Agent: to the address for such Funding
Agent set forth in Schedule B to the Receivables Transfer Agreement;
and
(e) in each case, with a copy to:
JPMORGAN CHASE BANK,
as the Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party.
Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall for any reason
whatsoever be held invalid, then such covenants, agreements, provisions, or
terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
Assignments Generally. This Agreement may not be assigned by the parties
hereto, except that the Purchaser may assign its rights hereunder pursuant to
the Receivables Transfer Agreement (including all of its right, title and
interest in, to, and under the Receivables
24
sold hereunder) to the Administrative Agent for the benefit of the Funding
Agents, the Committed Purchasers and the CP Conduit Purchasers as security for
the Purchaser's repayment obligations under the Receivables Transfer Agreement.
The Purchaser hereby notifies each Seller (and each Seller hereby acknowledges)
that the Purchaser, pursuant to the Receivables Transfer Agreement, has assigned
its rights (but not its obligations) (including all of its right, title and
interest in, to, and under the Receivables sold hereunder) hereunder to the
Administrative Agent for the benefit of the Funding Agents, the Committed
Purchasers and the CP Conduit Purchasers. All rights of the Purchaser hereunder
may be exercised by the Administrative Agent to the extent of its rights
hereunder and under the other Transaction Documents.
Further Assurances. The Purchaser and the Sellers agree to do and perform,
from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the other party more fully to
effect the purposes of this Agreement and the other Transaction Documents,
including, without limitation, the execution of any financing statements or
continuation statements or equivalent documents relating to the Receivables for
filing under the provisions of the Relevant UCC or other laws of any applicable
jurisdiction.
No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Purchaser, any Seller, the Administrative Agent
or a Funding Agent, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exhaustive of any rights, remedies, powers and privilege provided by law.
Counterparts. This Agreement may be executed in two or more counterparts
including telecopy transmission thereof (and by different parties on separate
counterparts), each of which shall be an original, but all of which together
shall constitute one and the same instrument.
Binding Effect; Third-Party Beneficiaries. This Agreement and the other
Transaction Documents will inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns. The
Administrative Agent, the Committed Purchasers, the CP Conduit Purchasers and
each Funding Agent are each intended by the parties hereto to be third-party
beneficiaries of this Agreement.
Merger and Integration. Except as specifically stated otherwise herein,
this Agreement and the other Transaction Documents set forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Agreement and the
other Transaction Documents.
Headings. The headings herein are for purposes of reference only and shall
not otherwise affect the meaning or interpretation of any provision hereof.
Exhibits. The exhibits referred to herein shall constitute a part of this
Agreement and are incorporated into this Agreement for all purposes.
25
Addition of Sellers. Subject to the terms and conditions hereof, from time
to time one or more wholly-owned direct or indirect Subsidiaries of C&A may
become additional Sellers parties hereto. Except with respect to the addition of
Textron Automotive Interiors Inc., Textron Automotive Exteriors Inc., M&C
Advanced Processes, Inc. and Textron Canada Limited as additional Sellers
effective as of the date hereof (provided, that the conditions set forth in
Section 7.2 shall be satisfied with respect thereto), if any such Subsidiary
wishes to become an additional Seller, C&A shall submit a request to such effect
in writing to Purchaser, the Administrative Agent and the Funding Agents (with a
copy to each Rating Agency). If C&A, the Purchaser, the Administrative Agent,
and each Funding Agent shall have agreed to any such request (such consent not
to be unreasonably withheld or delayed from the date such request is received
and such consent of each Funding Agent being obtained by the Administrative
Agent), such wholly-owned Subsidiary shall become an additional Seller party
hereto on the related Seller Addition Date upon satisfaction of the conditions
set forth in Section 7.2.
SECTION X.14. Additional Representations, Warranties and Covanants.
(a) Each Seller represents and warrants that:
(i) This Agreement creates a valid and continuing security interest
(as defined in the Relevant UCC) in such Seller's Receivables in favor of
the Purchaser, which security interest is prior to all other Liens, and is
enforceable as such as against creditors of and purchasers from the
Purchaser.
(ii) Such Seller's Receivables constitute "accounts" or "payment
intangibles" within the meaning of the Relevant UCC.
(iii) Prior to the transfer thereof to the Purchaser, such Seller
owned and had good and marketable title to such Seller's Receivables free
and clear of any Lien, claim or encumbrance of any Person (other than
Permitted Encumbrances).
(iv) Such Seller has caused the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions
under applicable law in order to perfect the security interest in such
Seller's Receivables granted to the Purchaser hereunder.
(v) Other than the security interest granted to the Purchaser pursuant
to this Agreement, such Seller has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of such Seller's
Receivables.
(vi) Such Seller has not authorized the filing of and is not aware of
any financing statements against such Seller that include a description of
collateral covering such Seller's Receivables other than any financing
statement relating to the security interest granted to the Purchaser
hereunder or that has been terminated. Such Seller is not aware of any
judgment or tax lien filings against such Seller.
26
(b) The representations and warranties set forth in this Section shall
survive the transfer and assignment of any Seller's Receivables to the Purchaser
and the termination of this Agreement.
(c) With respect to this Section, no failure to exercise and no delay in
exercising, on the part of any Person, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
27
IN WITNESS WHEREOF, the Purchaser and the Sellers each have caused this
Amended and Restated Receivables Purchase Agreement to be duly executed by their
respective officers as of the day and year first above written.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PRODUCTS CO.,
as a Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, General Counsel
and Secretary
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CARPET & ACOUSTICS (MI), INC.,
as a Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, General Counsel
and Secretary
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CARPET & ACOUSTICS (TN), INC.,
as a Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, General Counsel
and Secretary
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ACCESSORY MATS, INC., as a Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, General Counsel
and Secretary
DURA CONVERTIBLE SYSTEMS, INC.,
as a Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, General Counsel
and Secretary
AMCO CONVERTIBLE FABRICS, INC.,
as a Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, General Counsel
and Secretary
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PLASTICS, INC.,
as a Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, General Counsel
and Secretary
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CANADA INC., as a Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PLASTICS, LTD.,
as a Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, General Counsel
and Secretary
▇▇▇▇▇▇ GROUP, L.L.C.,
as a Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ FABRICS, INC.,
as a Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
TEXTRON AUTOMOTIVE INTERIORS INC.,
as a Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, General Counsel
and Secretary
TEXTRON AUTOMOTIVE EXTERIORS INC.,
as a Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, General Counsel
and Secretary
TEXTRON CANADA LIMITED,
as a Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
CARCORP, INC., as Purchaser
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
JPS Automotive, Inc.,
as a Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, General Counsel
and Secretary
M&C Advanced Processes, Inc.,
as a Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, General Counsel
and Secretary
EXHIBIT A
PRINCIPAL PLACE OF BUSINESS, CHIEF EXECUTIVE OFFICE
AND LOCATION OF RECORDS AND RELATED SECURITY
Principal Place of Business/
Name of Company Chief Executive Office
--------------- -----------------------------
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Products Co. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Carpet & Acoustics (MI), Inc. North America Head
Office/Tech. Center
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Carpet & Acoustics (TN), Inc. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Accessory Mats, Inc. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dura Convertible Systems, Inc. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Amco Convertible Fabrics, Inc. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ & Alkman Plastics, Inc. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
▇-▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇ Inc. Farnham Plant
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Plastics, Ltd. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇ Group, L.L.C. ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Fabrics, Inc. ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
JPS Automotive, Inc. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Textron Automotive Interiors Inc. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Textron Automotive Exteriors Inc. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Textron Canada Limited ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Carcorp, Inc. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
M&C Advanced Processes, Inc. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
A-2
Location of Records and Related Security for all U.S. Sellers:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and each Seller's respective principal
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ place of business and chief executive
office
Location of Records and Related Security for each Canadian Seller:
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Canada Inc. Farnham Plant
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Plastics, Ltd. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Textron Canada Limited ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
A-3
EXHIBIT B
FORM OF SELLER NOTE
--------, ---
FOR VALUE RECEIVED, the undersigned, CARCORP, INC., a Delaware corporation
(the "Maker"), hereby promises to pay to the order of [SELLER] (the "Payee"), on
the Purchase Termination Date relating to the Payee, the lesser of (i) the
Advance Limit or (ii) the aggregate unpaid principal amount of all Advances to
the Maker from the Payee pursuant to the terms of the Receivables Purchase
Agreement, in lawful money of the United States of America in immediately
available funds, and to pay interest from the date thereof on the principal
amount hereof from time to time outstanding, in like funds, at said office, at
the rate per annum set forth in the Receivables Purchase Agreement and shall be
payable in arrears on the last Business Day of each of the Maker's fiscal
months.
The Maker hereby waives diligence, presentment, demand, protest and notice
of any kind whatsoever. The non-exercise by the holder hereof of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Seller Note and all payments and
prepayments of the principal hereof and interest hereon and the respective dates
thereof shall be endorsed by the holder hereof on the schedule attached hereto
and made a part hereof, or on a continuation thereof which shall be attached
hereto and made a part hereof, or otherwise recorded by such holder in its
internal records; provided, however, that the failure of the holder hereof to
make such a notation or any error in such a notation shall not in any manner
affect the obligation of the Maker to make payments of principal and interest in
accordance with the terms of this Seller Note and the Receivables Purchase
Agreement.
The Maker shall have the right to prepay and, subject to the limitations
set forth in the Receivables Purchase Agreement, reborrow Advances made to it
without penalty or premium.
This Seller Note is one of the Seller Notes referred to in the Receivables
Purchase Agreement, which, among other things, contains provisions for the
subordination of this Seller Note to the rights of certain parties under the
Receivables Transfer Agreement, all upon the terms and conditions specified in
the Receivables Purchase Agreement. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in, or
incorporated by reference into, the Amended and Restated Receivables Purchase
Agreement dated as of the date hereof among the Maker, the Payee and the other
seller party thereto (as such agreement may from time to time be amended,
supplemented or otherwise modified and in effect, the "Receivables Purchase
Agreement").
B-1
This Seller Note shall be governed by, and construed in accordance with the
laws of the State of New York.
CARCORP, INC.
By:
---------------------------------------
Name:
Title:
B-2
Advances and Payments
Date Advance Principal/Interest Unpaid Principal Person Making the
Balance of Note Notation
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
-------------------------------------------------------------------------------------------------------------------
B-3
EXHIBIT C
FORM OF ADDITIONAL SELLER SUPPLEMENT
SUPPLEMENT, dated [ ], to the Amended and Restated Receivables Purchase
Agreement, dated as of December 20, 2001 (as amended, supplemented or otherwise
modified from time to time in accordance with its terms, the "Receivables
Purchase Agreement"), among ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Products, Co. ("C&A"), as a Seller,
the other Sellers named on Exhibit D thereto or added pursuant to a prior
Additional Seller Supplement and Carcorp, Inc., as the Purchaser.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Receivables Purchase Agreement provides that any wholly-owned
direct or indirect Subsidiary of C&A, although not originally a Seller
thereunder, may become a Seller under the Receivables Purchase Agreement upon
the satisfaction of each of the conditions precedent set forth in Sections 7.2
and 10.13 of the Receivables Purchase Agreement.
WHEREAS, the undersigned was not an original Seller under the Receivables
Purchase Agreement but now desires to become a Seller thereunder.
NOW, THEREFORE, the undersigned hereby agrees as follows:
The undersigned agrees to be bound by all of the provisions of the
Receivables Purchase Agreement applicable to a Seller thereunder and agrees that
it shall, on the date this Supplement is accepted by C&A, the Purchaser, the
Administrative Agent and each Funding Agent and each of the conditions precedent
set forth in Section 7.2 of the Receivables Purchase Agreement have been
satisfied, become a Seller for all purposes of the Receivables Purchase
Agreement to the same extent as if originally a party thereto.
C-1
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.
[Insert name of Seller]
By:
----------------------------------
Name:
Title:
[address]
Accepted as of the date first above written:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PRODUCTS CO.
By:
--------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
Accepted as of the date first above written:
CARCORP, INC.
By:
--------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
Acknowledged as of the date first above written:
JPMORGAN CHASE BANK, as Administrative Agent
By:
--------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
C-2
JPMORGAN CHASE BANK, as PARCO Funding Agent
By:
--------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
[------------],
as [_____] Funding Agent
By:
--------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
C-3
EXHIBIT D
SELLERS IN ADDITION TO C&A
State or Jurisdiction of
Name Incorporation or Formation
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Carpet & Acoustics (MI), Inc. Delaware
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Carpet & Acoustics (TN), Inc. Tennessee
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Accessory Mats, Inc. Delaware
Dura Convertible Systems, Inc. Delaware
Amco Convertible Fabrics, Inc. Delaware
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Plastics, Inc. Delaware
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Canada Inc. Ontario, Canada
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Plastics, Ltd. Ontario, Canada
▇▇▇▇▇▇ Group, L.L.C. Michigan
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Fabrics, Inc. Delaware
Textron Automotive Interiors Inc. Delaware
Textron Automotive Exteriors Inc. Delaware
Textron Canada Limited Canada
M&C Advanced Processes, Inc. Michigan
Carcorp, Inc. Delaware
JPS Automotive, Inc. Delaware
Notice Address for all Sellers listed in this Exhibit D:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Treasurer
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Products Co.
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇