UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 29, 2009
TRIMAS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware |
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001-10716 |
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38-2687639 |
(State or other jurisdiction |
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(Commission |
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(IRS Employer |
of incorporation) |
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File Number) |
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Identification No.) |
39400 Woodward Avenue, Suite 130, Bloomfield Hills, Michigan |
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48304 |
(Address of principal executive offices) |
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(Zip Code) |
Registrants telephone number, including area code (248) 631-5400
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement
Senior Secured Notes and Indenture
On December 29, 2009, TriMas Corporation (the Company) completed an offering of $250,000,000 aggregate principal amount of its 9.75% Senior Secured Notes due 2017 (the Senior Secured Notes) issued under an Indenture, dated as of December 29, 2009, among the Company, the Guarantors named therein (the Guarantors) and The Bank of New York Mellon Trust Company, N.A., as trustee (the Indenture).
The Senior Secured Notes will mature on December 15, 2017 and interest will accrue at a rate of 9.75% per annum from the date of original issuance and will be payable semi-annually in cash in arrears on June 15 and December 15, commencing on June 15, 2010. The Company at its option may redeem the Senior Secured Notes as follows:
· On or after December 15, 2013, some or all may be redeemed at a redemption price of 104.875% of the principal amount thereof if redeemed during the twelve-month period beginning on December 15, 2013, 102.438% of the principal amount thereof if redeemed during the twelve-month period beginning on December 15, 2014, and 100% of the principal amount thereof if redeemed on or after December 15, 2015, plus any accrued and unpaid interest;
· Prior to December 15, 2012, up to 35% of all Senior Secured Notes issued under the Indenture may be redeemed with the proceeds from certain equity offerings at a redemption price of 109.750% of the principal amount thereof, plus any accrued and unpaid interest;
· Prior to December 15, 2013, all or a part may be redeemed at a price equal to 100% of the principal amount thereof plus a make-whole premium.
Subject to certain exceptions, the Company and its subsidiaries are restricted from incurring additional debt; paying dividends on, redeeming or repurchasing stock; prepaying subordinated debt; creating liens, making specified types of investments, applying net proceeds from certain asset sales or losses, engaging in transactions with affiliates, merging, consolidating or selling substantially all of its assets; and restricting dividends or other payments from subsidiaries. Furthermore, in the event of a change of control as defined in the Indenture, the Company must offer to repurchase the Senior Secured Notes at 101% of the aggregate principal amount of the Senior Secured Notes repurchased, plus any accrued and unpaid interest. In connection with the sale of the Senior Secured Notes, the Company also entered into a security agreement (Security Agreement) governing the collateral by which the Senior Secured Notes are secured. Pursuant to the Security Agreement, the Notes and the guarantees thereof (the Guarantees) will be secured by a second priority lien on substantially all collateral pledged on a first priority basis to the lenders under the Amended and Restated Credit Agreement, which includes substantially all of the assets of the Company and the Guarantors, subject to certain exceptions and permitted liens. The Indenture also provides for customary events of default.
The net proceeds of the offering were used, together with other available cash, to repurchase the Companys outstanding 9 7/8% Senior Subordinated Notes due 2012 pursuant to a cash tender offer.
The foregoing descriptions of the Senior Secured Notes and the Indenture do not purport to be complete and are qualified in their entirety by reference to the Indenture (including the Form of Notes) which is filed as Exhibit 4.1 to this Form 8-K and is incorporated herein by reference.
Sixth Supplemental Indenture
On December 29, 2009, the Company entered into a Sixth Supplemental Indenture among the Company, the Guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as trustee (the Sixth Supplemental Indenture) in connection with the Companys cash tender offer for the Companys 9 7/8% Senior Subordinated Notes
due 2012. Pursuant to the Sixth Supplemental Indenture, all material covenants and certain events of default governing the Companys 9 7/8% Senior Subordinated Notes due 2012 were removed.
The foregoing description of the Sixth Supplemental Indenture does not purport to be complete and is qualified in its entirety by reference to the Sixth Supplemental Indenture which is filed as Exhibit 4.2 to this Form 8-K and is incorporated herein by reference.
Amended and Restated Credit Agreement
On January 14, 2010, the Company entered into an amended and restated credit agreement among the Company, TriMas Company LLC, the Subsidiary Term Borrowers party thereto, the Foreign Subsidiary Borrowers party thereto, the Lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative and Collateral Agent, Comerica Bank, as Syndication Agent and J.P. Morgan Securities Inc., as Lead Arranger and Bookrunner (the Amended and Restated Credit Agreement). Pursuant to the Amended and Restated Credit Agreement, the Companys revolving credit facilities were increased by $5.0 million by the addition of a new $5.0 million Tranche C Revolving Facility. The Tranche C Revolving Facility has the same terms and conditions as the Tranche A Revolving Facility that matures December 15, 2013 except that it does not participate in letters of credit or swingline loans.
The foregoing description of the Amended and Restated Credit Agreement does not purport to be complete and is qualified in its entirety by reference to the Amended and Restated Credit Agreement which is filed as Exhibit 10.1 to this Form 8-K and is incorporated herein by reference.
Receivables Purchase and Transfer Agreements
On December 29, 2009, the Company entered into a new $75.0 million three year accounts receivable facility among TSPC, Inc., as Transferor, the Company, as Collection Agent, TriMas Company LLC, as Guarantor, the persons party thereto from time to time as Purchasers and Wachovia Bank, National Association, as Administrative Agent (the Accounts Receivable Facility).
The Company currently estimates that its availability under the Accounts Receivable Facility as of September 30, 2009 would have been between $38.0 million and $41.5 million. Because availability under the Accounts Receivable Facility is expected to vary depending on the value of the Companys eligible accounts receivable and customary reserves, the Companys availability may increase or decrease from time to time relative to the amount that would have been available as of September 30, 2009. The Company estimates that over the twelve months ended September 30, 2009, its availability under the Accounts Receivable Facility would have varied between $38.0 million and $70.0 million. Advances under the facility will initially bear discount at a per annum rate of LIBOR plus an applicable margin of 3.25%. The Company expects that the Accounts Receivable Facility will be accounted for as an off-balance sheet arrangement in 2009, however as a result of certain changes in GAAP to be implemented on January 1, 2010, it expects that the Accounts Receivable Facility will be accounted for as an on-balance sheet arrangement thereafter.
The foregoing descriptions of the Amended and Restated Receivables Purchase Agreement and the Receivables Transfer Agreement do not purport to be complete and are qualified in their entirety by reference to the Amended and Restated Receivables Purchase Agreement and the Receivables Transfer Agreement which are filed as Exhibits 10.2 and 10.3, respectively, to this Form 8-K and are incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
(a) See Item 1.01 above under the headings The Senior Secured Notes and Indenture, The Amended and Restated Credit Agreement, and the Receivables Purchase and Transfer Agreements, each of which is incorporated herein by reference.
Item 7.01 Regulation FD Disclosure
On January 14, 2010, TriMas Corporation (the Corporation) issued a press release announcing that it has concluded the final step of its previously announced refinancing activities with the completion of the cash tender offer for its outstanding 9 7/8% Senior Subordinated Notes due 2012. The full text of the press release is furnished herewith as Exhibit 99.1 and is incorporated herein by reference.
The Corporation is furnishing the information in this Item 7.01 of this Current Report on Form 8-K and in Exhibit 99.1 to comply with Regulation FD. Such information, including the accompanying Exhibit 99.1 shall not be deemed filed for any purpose, including for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the Exchange Act ), or otherwise subject to the liabilities of that Section. The information in this Item 7.01 of this Current Report on Form 8-K, including the accompanying Exhibit 99.1 shall not be deemed incorporated by reference into any filing under the Exchange Act regardless of any general incorporation language in such filing.
Item 9.01 Financial Statements and Exhibits
(d) The following Exhibits are deemed filed or furnished, as applicable, with this Current Report on Form 8-K:
Exhibit 4.1 Indenture, dated as of December 29, 2009, among TriMas Corporation, the Guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as Trustee (including the Form of Note)
Exhibit 4.2 Sixth Supplemental Indenture, dated as of December 29, 2009, among TriMas Corporation, the Guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as Trustee
Exhibit 10.1 Credit Agreement, dated as of June 6, 2002, as amended and restated as of August 2, 2006, as further amended and restated as of December 16, 2009, as further amended and restated as of January 13, 2010, among TriMas Corporation, TriMas Company LLC, the Subsidiary Term Borrowers party thereto, the Foreign Subsidiary Borrowers party thereto, the Lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative and Collateral Agent, Comerica Bank, as Syndication Agent and J.P. Morgan Securities Inc., as Lead Arranger and Bookrunner
Exhibit 10.2 Amended and Restated Receivables Purchase Agreement, dated as of December 29, 2009, among TriMas Corporation, the Sellers named therein and TSPC, Inc., as Purchaser
Exhibit 10.3 Receivables Transfer Agreement, dated as of December 29, 2009, among TSPC, Inc., as Transferor, TriMas Corporation, as Collection Agent, TriMas Company LLC, as Guarantor, the persons party thereto from time to time as Purchasers and Wachovia Bank, National Association, as Administrative Agent
Exhibit 99.1 Press Release issued by TriMas Corporation on January 14, 2010 (furnished solely for purposes of Item 7.01 of this Current Report on Form 8-K)
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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TRIMAS CORPORATION |
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Date: January 15, 2010 |
By: |
/s/ Joshua A. Sherbin |
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Name: |
Joshua A. Sherbin |
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Title: |
Vice President, General Counsel and Secretary |
Exhibit 4.1
EXECUTION COPY
INDENTURE
Dated as of December 29, 2009
Among
TRIMAS CORPORATION,
THE GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee and as Second Lien Agent
9¾% SENIOR SECURED NOTES DUE 2017
CROSS-REFERENCE TABLE*
Trust Indenture Act Section |
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Indenture Section |
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310(a)(1) |
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7.10 |
(a)(2) |
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7.10 |
(a)(3) |
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N.A. |
(a)(4) |
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N.A. |
(a)(5) |
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7.10 |
(b) |
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7.10 |
(c) |
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N.A. |
311(a) |
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7.11 |
(b) |
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7.11 |
(c) |
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N.A. |
312(a) |
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2.05 |
(b) |
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13.03 |
(c) |
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13.03 |
313(a) |
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7.06 |
(b)(1) |
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N.A. |
(b)(2) |
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7.06; 7.07 |
(c) |
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7.06; 13.02 |
(d) |
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7.06 |
314(a) |
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N.A. |
(b) |
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N.A. |
(c)(1) |
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N.A. |
(c)(2) |
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N.A. |
(c)(3) |
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N.A. |
(d) |
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N.A. |
(e) |
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N.A. |
(f) |
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N.A. |
315(a) |
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7.01 |
(b) |
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7.05; 13.02 |
(c) |
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7.01 |
(d) |
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7.01 |
(e) |
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6.14 |
316(a)(last sentence) |
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2.09 |
(a)(1)(A) |
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6.05 |
(a)(1)(B) |
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6.04 |
(a)(2) |
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N.A. |
(b) |
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6.07 |
(c) |
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2.12; 9.04 |
317(a)(1) |
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6.08 |
(a)(2) |
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6.12 |
(b) |
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2.04 |
318(a) |
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13.01 |
(b) |
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N.A. |
(c) |
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13.01 |
N.A. means not applicable.
* This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
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Page |
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ARTICLE 1 |
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Section 1.01 |
Definitions |
1 |
Section 1.02 |
Other Definitions |
32 |
Section 1.03 |
Incorporation by Reference of Trust Indenture Act |
33 |
Section 1.04 |
Rules of Construction |
34 |
Section 1.05 |
Acts of Holders |
34 |
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ARTICLE 2
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Section 2.01 |
Form and Dating; Terms |
36 |
Section 2.02 |
Execution and Authentication |
37 |
Section 2.03 |
Registrar and Paying Agent |
37 |
Section 2.04 |
Paying Agent to Hold Money in Trust |
38 |
Section 2.05 |
Holder Lists |
38 |
Section 2.06 |
Transfer and Exchange |
38 |
Section 2.07 |
Replacement Notes |
51 |
Section 2.08 |
Outstanding Notes |
52 |
Section 2.09 |
Treasury Notes |
52 |
Section 2.10 |
Temporary Notes |
52 |
Section 2.11 |
Cancellation |
52 |
Section 2.12 |
Defaulted Interest |
53 |
Section 2.13 |
CUSIP Numbers |
53 |
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ARTICLE 3 |
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Section 3.01 |
Notices to Trustee |
53 |
Section 3.02 |
Selection of Notes to Be Redeemed or Purchased |
54 |
Section 3.03 |
Notice of Redemption |
54 |
Section 3.04 |
Effect of Notice of Redemption |
55 |
Section 3.05 |
Deposit of Redemption or Purchase Price |
55 |
Section 3.06 |
Notes Redeemed or Purchased in Part |
56 |
Section 3.07 |
Optional Redemption |
56 |
Section 3.08 |
Mandatory Redemption |
57 |
Section 3.09 |
Offers to Repurchase by Application of Excess Proceeds |
57 |
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Page |
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ARTICLE 4 |
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Section 4.01 |
Payment of Notes |
59 |
Section 4.02 |
Maintenance of Office or Agency |
59 |
Section 4.03 |
Reports and Other Information |
60 |
Section 4.04 |
Compliance Certificate |
61 |
Section 4.05 |
Taxes |
61 |
Section 4.06 |
Stay, Extension and Usury Laws |
61 |
Section 4.07 |
Limitation on Restricted Payments |
61 |
Section 4.08 |
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries |
66 |
Section 4.09 |
Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock |
68 |
Section 4.10 |
Asset Sales |
72 |
Section 4.11 |
Transactions with Affiliates |
75 |
Section 4.12 |
Liens |
77 |
Section 4.13 |
Corporate Existence |
78 |
Section 4.14 |
Offer to Repurchase Upon Change of Control |
78 |
Section 4.15 |
Limitation on Guarantees of Indebtedness by Restricted Subsidiaries |
80 |
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ARTICLE 5 |
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Section 5.01 |
Merger, Consolidation or Sale of All or Substantially All Assets |
81 |
Section 5.02 |
Successor Corporation Substituted |
83 |
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ARTICLE 6 |
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Section 6.01 |
Events of Default |
83 |
Section 6.02 |
Acceleration |
86 |
Section 6.03 |
Other Remedies |
86 |
Section 6.04 |
Waiver of Past Defaults |
87 |
Section 6.05 |
Control by Majority |
87 |
Section 6.06 |
Limitation on Suits |
87 |
Section 6.07 |
Rights of Holders of Notes to Receive Payment |
88 |
Section 6.08 |
Collection Suit by Trustee |
88 |
Section 6.09 |
Restoration of Rights and Remedies |
88 |
Section 6.10 |
Rights and Remedies Cumulative |
88 |
Section 6.11 |
Delay or Omission Not Waiver |
88 |
Section 6.12 |
Trustee May File Proofs of Claim |
88 |
Section 6.13 |
Priorities |
89 |
Section 6.14 |
Undertaking for Costs |
89 |
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Page |
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Section 7.01 |
Duties of Trustee |
90 |
Section 7.02 |
Rights of Trustee |
91 |
Section 7.03 |
Individual Rights of Trustee |
92 |
Section 7.04 |
Trustees Disclaimer |
92 |
Section 7.05 |
Notice of Defaults |
92 |
Section 7.06 |
Reports by Trustee to Holders of the Notes |
92 |
Section 7.07 |
Compensation and Indemnity |
93 |
Section 7.08 |
Replacement of Trustee |
93 |
Section 7.09 |
Successor Trustee by Merger, etc. |
94 |
Section 7.10 |
Eligibility; Disqualification |
94 |
Section 7.11 |
Preferential Collection of Claims Against Issuer |
95 |
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ARTICLE 8 |
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Section 8.01 |
Option to Effect Legal Defeasance or Covenant Defeasance |
95 |
Section 8.02 |
Legal Defeasance and Discharge |
95 |
Section 8.03 |
Covenant Defeasance |
96 |
Section 8.04 |
Conditions to Legal or Covenant Defeasance |
96 |
Section 8.05 |
Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions |
97 |
Section 8.06 |
Repayment to Issuer |
98 |
Section 8.07 |
Reinstatement |
98 |
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ARTICLE 9 |
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Section 9.01 |
Without Consent of Holders of Notes |
99 |
Section 9.02 |
With Consent of Holders of Notes |
100 |
Section 9.03 |
Compliance with Trust Indenture Act |
102 |
Section 9.04 |
Revocation and Effect of Consents |
102 |
Section 9.05 |
Notation on or Exchange of Notes |
103 |
Section 9.06 |
Trustee to Sign Amendments, etc. |
103 |
Section 9.07 |
Payment for Consent |
103 |
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ARTICLE 10 |
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Section 10.01 |
Guarantee |
103 |
Section 10.02 |
Limitation on Guarantor Liability |
105 |
Section 10.03 |
Execution and Delivery |
105 |
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Page |
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Subrogation |
106 |
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Section 10.05 |
Benefits Acknowledged |
106 |
Section 10.06 |
Release of Guarantees |
106 |
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ARTICLE 11 |
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Section 11.01 |
Satisfaction and Discharge |
106 |
Section 11.02 |
Application of Trust Money |
107 |
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ARTICLE 12 |
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Section 12.01 |
Relative Rights; Intercreditor Agreement |
108 |
Section 12.02 |
Security Documents |
108 |
Section 12.03 |
Release of Collateral |
108 |
Section 12.04 |
Information Regarding Collateral |
109 |
Section 12.05 |
After-Acquired Collateral |
110 |
Section 12.06 |
Second Lien Agent |
110 |
Section 12.07 |
Authorization of Actions to Be Taken |
110 |
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ARTICLE 13 |
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Section 13.01 |
Trust Indenture Act Controls |
111 |
Section 13.02 |
Notices |
112 |
Section 13.03 |
Communication by Holders of Notes with Other Holders of Notes |
113 |
Section 13.04 |
Certificate and Opinion as to Conditions Precedent |
113 |
Section 13.05 |
Statements Required in Certificate or Opinion |
113 |
Section 13.06 |
Rules by Trustee and Agents |
113 |
Section 13.07 |
No Personal Liability of Directors, Officers, Employees and Stockholders |
114 |
Section 13.08 |
Governing Law |
114 |
Section 13.09 |
Waiver of Jury Trial |
114 |
Section 13.10 |
Force Majeure |
114 |
Section 13.11 |
No Adverse Interpretation of Other Agreements |
114 |
Section 13.12 |
Successors |
114 |
Section 13.13 |
Severability |
114 |
Section 13.14 |
Counterpart Originals |
115 |
Section 13.15 |
Table of Contents, Headings, etc. |
115 |
Section 13.16 |
Qualification of Indenture |
115 |
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Exhibit A |
Form of Note |
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Exhibit B |
Form of Certificate of Transfer |
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Exhibit C |
Form of Certificate of Exchange |
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Exhibit D |
Form of Supplemental Indenture to Be Delivered by Subsequent Guarantors |
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INDENTURE, dated as of December 29, 2009, among TriMas Corporation, a Delaware corporation (the Issuer), the Guarantors (as defined herein) listed on the signature pages hereto and The Bank of New York Mellon Trust Company, N.A., a national banking association, as Trustee and as Second Lien Agent.
W I T N E S S E T H
WHEREAS, the Issuer has duly authorized the creation of an issue of (i) $250,000,000 aggregate principal amount of 9¾% Senior Secured Notes due 2017 (the Initial Notes);
WHEREAS, each of the Issuer and each of the Guarantors has duly authorized the execution and delivery of this Indenture.
NOW, THEREFORE, the Issuer, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes.
Section 1.01 Definitions.
144A Global Note means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.
Acquired Indebtedness means, with respect to any specified Person,
(1) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Restricted Subsidiary of such specified Person, including Indebtedness incurred in connection with, or in contemplation of, such other Person merging with or into or becoming a Restricted Subsidiary of such specified Person, and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
Additional Interest means all additional interest then owing pursuant to the Registration Rights Agreement.
Additional Notes means additional Notes (other than the Initial Notes and other than Exchange Notes issued for such Initial Notes) issued from time to time under this Indenture in accordance with Sections 2.01 and 4.09 hereof.
Affiliate of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, control (including, with correlative meanings, the terms controlling, controlled by and under common control with), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. No Person (other than the Issuer or any Subsidiary of the Issuer) in whom a Receivables Subsidiary makes an Investment in connection with a Qualified Receivables Transaction will be deemed to be an Affiliate of the Issuer or any of its Subsidiaries solely by reason of such Investment.
Agent means any Registrar or Paying Agent.
Applicable Premium means, with respect to any Note on any Redemption Date, the greater of:
(1) 1.0% of the principal amount of such Note; and
(2) the excess, if any, of (a) the present value at such Redemption Date of (i) the redemption price of such Note at December 15, 2013 (such redemption price being set forth in Section 3.07 hereof), plus (ii) all required interest payments due on such Note through December 15, 2013 (excluding accrued but unpaid interest to the Redemption Date), computed using a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points; over (b) the principal amount of such Note.
Applicable Procedures means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and/or Clearstream that apply to such transfer or exchange.
Asset Sale means:
(1) the sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale and Lease-Back Transaction) of the Issuer or any of the Restricted Subsidiaries (each referred to in this definition as a disposition); or
(2) the issuance or sale of Equity Interests of any Restricted Subsidiary, whether in a single transaction or a series of related transactions (other than Preferred Stock of Restricted Subsidiaries issued in compliance with Section 4.09 hereof);
in each case, other than:
(a) any disposition of Cash Equivalents or obsolete or worn out equipment in the ordinary course of business or any disposition of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of the Issuer in a manner permitted pursuant to the provisions described under Section 5.01 hereof or any disposition that constitutes a Change of Control pursuant to this Indenture;
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 4.07 hereof or the making of a Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of related transactions with an aggregate fair market value of less than $2.5 million;
(e) any disposition of property or assets or issuance of securities by a Restricted Subsidiary of the Issuer to the Issuer or by the Issuer or a Restricted Subsidiary of the Issuer to another Restricted Subsidiary of the Issuer;
(f) to the extent allowable under Section 1031 of the Internal Revenue Code of 1986, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sublease of any real or personal property in the ordinary course of business;
(h) foreclosures on assets;
(i) any financing transaction with respect to property built or acquired by the Issuer or any Restricted Subsidiary after the Issue Date, including Sale and Lease-Back Transactions permitted by this Indenture;
(j) licenses of intellectual property in the ordinary course of business;
(k) sales of accounts receivable and related assets of the type specified in the definition of Qualified Receivables Transaction to a Receivables Subsidiary;
(l) the surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind; and
(m) sales of accounts receivable and related assets by a Foreign Subsidiary pursuant to customary terms whereby recourse and exposure in respect thereof to any Foreign Subsidiary does not exceed at any time $10.0 million.
Bankruptcy Law means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
Broker-Dealer means a broker or a dealer within the meaning of the Exchange Act.
Board of Directors means:
(1) with respect to a corporation, the board of directors of the corporation;
(2) with respect to a partnership, the board of directors of the general partner of the partnership;
(3) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and
(4) with respect to any other Person, the board or committee of such Person serving a similar function.
Business Day means each day which is not a Legal Holiday.
Capital Stock means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
Capitalized Lease Obligation means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) in accordance with GAAP.
Cash Equivalents means:
(1) United States dollars;
(2) (a) euro, or any national currency of any participating member of the EMU; or
(b) in the case of any Foreign Subsidiary that is a Restricted Subsidiary, such local currencies held by them from time to time in the ordinary course of business;
(3) securities issued or directly and fully and unconditionally guaranteed or insured by the U.S. government or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 12 months or less from the date of acquisition;
(4) certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having capital and surplus of not less than $500.0 million in the case of U.S. banks or $250.0 million in the case of non-U.S. banks;
(5) repurchase obligations for underlying securities of the types described in clauses (3) and (4) entered into with any financial institution meeting the qualifications specified in clause (4) above;
(6) commercial paper rated at least P-1 by Moodys or at least A-1 by S&P and in each case maturing within 12 months after the date of creation thereof;
(7) marketable short-term money market and similar securities having a rating of at least P-2 or A-2 from either Moodys or S&P, respectively and in each case maturing within 24 months after the date of creation thereof;
(8) investment funds investing 95% of their assets in securities of the types described in clauses (1) through (7) above;
(9) readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having an Investment Grade Rating from either Moodys or S&P with maturities of 12 months or less from the date of acquisition;
(10) Indebtedness or Preferred Stock issued by Persons with a rating of A or higher from S&P or A2 or higher from Moodys with maturities of 12 months or less from the date of acquisition; and
(11) Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moodys.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) and (2) above, provided that such amounts are converted into any currency listed in clauses (1) and (2) as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.
Cash Management Bank means any First Lien Lender or an affiliate of a First Lien Lender (together with its successors and assigns) providing Cash Management Services to the Issuer or any Guarantor.
Cash Management Obligations means all obligations owing by the Issuer or any Guarantor to any Cash Management Bank in respect of any Cash Management Services (including, without limitation, indemnities, fees and interest thereon and all interest and fees that accrue on or after the commencement of any Insolvency or Liquidation Proceeding at the rate provided for in the respective documents governing the Cash Management Services, whether or not a claim for post-petition interest or fees is allowed or allowable in any such Insolvency or Liquidation Proceeding), now existing or hereafter incurred under, arising out of or in connection with such Cash Management Services, and the due performance and compliance by the Issuer or such Guarantor with the terms, conditions and agreements of such Cash Management Services.
Cash Management Services means treasury, depository, bank product and/or cash management services or any automated clearing house transfer services.
Change of Control means the occurrence of any of the following:
(1) the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of the Issuer and its Subsidiaries, taken as a whole, to any Person other than a Principal; provided that the consummation of a sale of a Designated Business in accordance with the requirements set forth under Section 4.10 hereof will not constitute a sale of all or substantially all of assets of the Issuer and its Subsidiaries, taken as a whole, for purposes of
this clause (1); provided, further, that after giving pro forma effect to such sale (including the application of the net proceeds therefrom) the Consolidated Leverage Ratio of the Issuer would be no greater than 3.75 to 1.00;
(2) any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than the Principals or a Permitted Group, is or becomes, in a single transaction or in a related series of transactions, the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision), directly or indirectly, of 50% or more of the total voting power of the Voting Stock of the Issuer; or
(3) the adoption by the stockholders of the Issuer of a plan or proposal for the liquidation or dissolution of the Issuer.
Notwithstanding the foregoing, (i) any dividend or other distribution of any Voting Stock of the Issuer by any Principal to the direct or indirect equity holders and other investors of such Principal (or further dividend or other distribution by such equity holders and other investors to their respective direct or indirect equity holders and other investors), in accordance with the terms of the documents (of such Principal or such direct or indirect equity holders and other investors of such Principal) governing such equity or other investments or as otherwise agreed by such equity holders and other investors, shall not constitute a Change of Control, and (ii) the existence from time to time of any group (as that term is used in Section 13(d) of the Exchange Act) comprised of any such equity holders and other investors shall not constitute a Change of Control.
Clearstream means Clearstream Banking, Société Anonyme and its successors.
Collateral means all of the property and assets, in each case, that are held by the Issuer or any of the Guarantors, to the extent that such assets secure the First Lien Obligations and to the extent that a second-priority security interest is able to be granted or perfected therein, in each case, other than Excluded Assets.
Consolidated Depreciation and Amortization Expense means with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.
Consolidated Interest Expense means, with respect to any Person for any period, without duplication, the sum of:
(1) consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income including (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP), (d) the interest component of Capitalized Lease Obligations, and (e) net payments, if any, pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding
(x) amortization or one-time write-off of deferred financing fees, debt issuance costs, commissions, fees and expenses, (y) any expensing or write-off of commitment and other financing fees and (z) the recording of a debt modification at fair value; plus
(2) consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less
(3) interest income for such period.
For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.
Consolidated Leverage Ratio means the ratio of (1) the aggregate principal amount of Indebtedness (and without duplication the aggregate net investment outstanding under any Qualified Receivables Transaction) to (2) EBITDA for the most recently ended four fiscal quarters for which financial statements are available immediately preceding the date of determination, with such pro forma adjustments to EBITDA as would be required under the second paragraph of the definition of Fixed Charge Coverage Ratio in performing a calculation thereof.
Consolidated Net Income means, with respect to any Person for any period, the aggregate of the Net Income, of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided, however, that, without duplication,
(1) any after-tax effect of extraordinary gains or losses (less all fees and expenses relating thereto) or expenses, severance, relocation costs and curtailments or modifications to pension and post-retirement employee benefit plans shall be excluded,
(2) the cumulative effect of a change in accounting principles during such period shall be excluded,
(3) any after-tax effect of income (loss) from discontinued operations and any net after-tax gains or losses on disposal of disposed, abandoned or discontinued operations shall be excluded,
(4) any after-tax effect of gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions other than in the ordinary course of business, as determined in good faith by the Issuer, shall be excluded,
(5) the Net Income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of the Issuer shall include the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash) to the referent Person or a Restricted Subsidiary thereof in respect of such period by such Person and shall exclude the amount of any losses that have been funded with cash from the Issuer or a Restricted Subsidiary during such period,
(6) the Net Income (but not loss) for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded if the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of determination wholly permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived; provided that Consolidated Net Income of the Issuer shall include the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) to the Issuer or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein,
(7) effects of adjustments (including the effects of such adjustments pushed down to the Issuer and its Restricted Subsidiaries) in the property and equipment and other intangible assets, deferred revenue and debt line items in such Persons consolidated financial statements pursuant to GAAP resulting from the application of purchase accounting in relation to any consummated acquisition or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded,
(8) any impairment charge or asset write-off, in each case, pursuant to GAAP and the amortization of intangibles arising pursuant to GAAP shall be excluded,
(9) any after tax effect of income (loss) from the early extinguishment of Indebtedness shall be excluded,
(10) any non-cash compensation expense recorded from grants of stock appreciation or similar rights, stock options, restricted stock or other rights shall be excluded, and
(11) the effects of any premium or discount arising from the recording of a debt modification at fair value in accordance with GAAP shall be excluded.
Notwithstanding the foregoing, for the purpose of Section 4.07 hereof only (other than clause (3)(d) of Section 4.07(a) hereof), there shall be excluded from Consolidated Net Income any income arising from any sale or other disposition of Restricted Investments made by the Issuer and its Restricted Subsidiaries, any repurchases and redemptions of Restricted Investments from the Issuer and its Restricted Subsidiaries, any repayments of loans and advances which constitute Restricted Investments by the Issuer or any of its Restricted Subsidiaries, any sale of the stock of an Unrestricted Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in each case only to the extent such amounts increase the amount of Restricted Payments permitted under clause (3)(d) of Section 4.07(a) hereof.
Consolidated Secured Debt Ratio means the ratio of (1) the aggregate principal amount of Secured Indebtedness (and without duplication the aggregate net investment outstanding under any Qualified Receivables Transaction) to (2) EBITDA for the most recently ended four fiscal quarters for which financial statements are available immediately preceding the date of determination, with such pro forma adjustments to EBITDA as would be required under the second paragraph of the definition of Fixed Charge Coverage Ratio in performing a calculation thereof.
Contingent Obligations means, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness
(primary obligations) of any other Person (the primary obligor) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent,
(1) to purchase any such primary obligation or any property constituting direct or indirect security therefor,
(2) to advance or supply funds
(a) for the purchase or payment of any such primary obligation, or
(b) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or
(3) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.
Corporate Trust Office of the Trustee shall be at the address of the Trustee specified in Section 13.02 hereof or such other address as to which the Trustee may give notice to the Holders and the Issuer.
Credit Facilities means, with respect to the Issuer or any of its Restricted Subsidiaries, one or more debt facilities, including the Senior Credit Facility, or other financing arrangements (including, without limitation, commercial paper facilities or indentures) providing for revolving credit loans, term loans, letters of credit, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or other long-term indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements or refundings thereof and any indentures or credit facilities or commercial paper facilities that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount permitted to be borrowed thereunder or alters the maturity thereof (provided that such increase in borrowings is permitted under Section 4.09 hereof) or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, lender or group of lenders.
Custodian means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.
Default means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
Definitive Note means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06(c) hereof, substantially in the form of Exhibit A hereto, except that such Note shall not bear the Global Note Legend and shall not have the Schedule of Exchanges of Interests in the Global Note attached thereto.
Depositary means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and
any and all successors thereto appointed as Depositary hereunder and having become such pursuant to the applicable provision of this Indenture.
Designated Business means any or all of the businesses, operations and assets of the Issuer (including all assets used in or reasonably related to the Designated Business) identified by the Issuer as the Designated Business in an Officers Certificate (the Designated Business Officers Certificate) that collectively represent less than (a) 33% of EBITDA of the Issuer for the most recently ended four fiscal quarters for which financial statements are available immediately preceding the date of declaration of a sale of a Designated Business, determined on a pro forma basis for both the Issuer and the Designated Business with the pro forma adjustments thereto that would be applicable under the second paragraph of the definition of Fixed Charge Coverage Ratio in performing a calculation thereof, and (b) 33% of the Total Assets of the Issuer as of the end of the most recent fiscal quarter for which financial statements are available immediately preceding the date on which a sale of a Designated Business is consummated, determined on a pro forma basis as if any acquisitions, mergers, consolidations, dispositions and/or designations of Unrestricted Subsidiaries occurring subsequent to the end of such fiscal quarter and prior to the date on which the sale of such Designated Business had been consummated, as of the end of such fiscal quarter; provided, however, that at the time of a sale of a Designated Business, such Designated Business may include Cash Equivalents reasonably required to operate such business in the ordinary course, as determined in good faith by the Issuer (which determination shall be conclusive), or such other cash as may represent the proceeds of a financing that is solely recourse to the Designated Business and entered into in connection with the sale of a Designated Business; provided further that the Issuer may only provide one Designated Business Officers Certificate.
Designated Non-cash Consideration means the fair market value of non-cash consideration received by the Issuer or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officers Certificate, setting forth the basis of such valuation, executed by an executive vice president and the principal financial officer of the Issuer, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Non-cash Consideration.
Discharge of First Lien Obligations means, subject to any reinstatement of First Lien Obligations in accordance with the Intercreditor Agreement, (a) payment in full in cash of the principal of and interest (including interest accruing on or after the commencement of any Insolvency or Liquidation Proceeding at the rate provided for in the respective First Lien Document, whether or not such interest would be allowed in any such Insolvency or Liquidation Proceeding) and premium, if any, on all Indebtedness under the First Lien Documents and termination of all commitments of the First Lien Lenders to lend or otherwise extend credit under the First Lien Documents, (b) payment in full in cash of all other First Lien Obligations (including letter of credit reimbursement obligations) that are due and payable or otherwise accrued and owing at or prior to the time such principal, interest, and premium are paid (other than Cash Management Obligations and Secured Hedge Obligations so long as arrangements satisfactory to the applicable Cash Management Bank or Hedge Bank shall have been made), and (c) termination or cash collateralization (in an amount and manner, and on terms, reasonably satisfactory to the First Lien Agent) of all letters of credit issued under the First Lien Credit Documents.
Disqualified Stock means, with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely as a result of a change of control or asset sale) pursuant to a sinking fund obligation or otherwise,
or is redeemable at the option of the holder thereof (other than solely as a result of a change of control or asset sale), in whole or in part, in each case prior to the date 91 days after the earlier of the maturity date of the Notes or the date the Notes are no longer outstanding; provided, however, that if such Capital Stock is issued to any plan for the benefit of employees of the Issuer or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Issuer or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
EBITDA means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period
(1) increased (without duplication) by:
(a) provision for taxes based on income or profits or capital gains, including, without limitation, state, franchise and similar taxes and foreign withholding taxes of such Person paid or accrued during such period deducted (and not added back) in computing Consolidated Net Income; plus
(b) Fixed Charges of such Person for such period (including (x) net losses on Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk and (y) costs of surety bonds in connection with financing activities) to the extent the same was deducted (and not added back) in calculating such Consolidated Net Income; plus
(c) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent the same were deducted (and not added back) in computing Consolidated Net Income; plus
(d) any expenses or charges (other than depreciation or amortization expense) related to any Equity Offering, Investment, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted to be incurred by this Indenture (including a refinancing thereof) (whether or not successful), including (i) such fees, expenses or charges related to the offering of the Notes and the Credit Facilities and (ii) any amendment or other modification of any debt instrument, and, in each case, deducted (and not added back) in computing Consolidated Net Income; plus
(e) the amount of any restructuring charge or reserve deducted (and not added back) in such period in computing Consolidated Net Income, including any one-time costs incurred in connection with acquisitions after the Issue Date and costs related to the closure and/or consolidation of facilities; plus
(f) any other non-cash charges, including any write-offs or write-downs, reducing Consolidated Net Income for such period (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period); plus
(g) any costs or expense reducing Consolidated Net Income for such period incurred by the Issuer or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or
shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of the Issuer or net cash proceeds of an issuance of Equity Interest of the Issuer (other than Disqualified Stock) solely to the extent that such net cash proceeds are excluded from the calculation set forth in clause (3) of Section 4.07(a) hereof; plus
(h) the amount of any non-controlling interest expense reducing Consolidated Net Income for such period; plus
(i) the amount of loss on sale of receivables and related assets to the Receivables Subsidiary in connection with a Qualified Receivables Transaction reducing Consolidated Net Income for such period;
(2) decreased by (without duplication) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced EBITDA in any prior period, and
(3) increased or decreased by (without duplication):
(a) any net gain or loss resulting in such period from Hedging Obligations and the application of Statement of Financial Accounting Standards No. 133; plus or minus, as applicable,
(b) any net gain or loss resulting in such period from currency translation gains or losses related to currency remeasurements of Indebtedness (including any net loss or gain resulting from Hedging Obligations for currency exchange risk).
EMU means the economic and monetary union as contemplated in the Treaty on European Union.
Equity Interests means Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.
Equity Offering means any public or private sale of common stock or Preferred Stock of the Issuer or any of its direct or indirect parent companies (excluding Disqualified Stock), other than:
(1) public offerings with respect to the Issuers or any direct or indirect parent companys common stock registered on Form S-8; and
(2) issuances to any Subsidiary of the Issuer.
euro means the single currency of participating member states of the EMU.
Euroclear means Euroclear S.A./N.V., as operator of the Euroclear system.
Exchange Act means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
Exchange Notes means the Notes issued in the Registered Exchange Offer pursuant to Section 2.06(f) hereof.
Exchange Offer Registration Statement has the meaning set forth in the Registration Rights Agreement.
Excluded Assets means (a) any asset, including, without limitation, accounts receivable and proceeds of inventory, of any kind, to the extent that (i) such asset is sold (or intended to be sold) to the Receivables Subsidiary pursuant to a Qualified Receivables Transaction and (ii) such sale or intended sale is permitted by the Senior Credit Facility, (b) any asset acquired, constructed or improved pursuant to a capital lease or purchase money indebtedness permitted by the Senior Credit Facility and which does not secure First Lien Obligations, (c) certain excluded contracts, in each case as set forth in the Security Documents, (d) leased real property, (e) owned real property that is not subject to a mortgage to secure First Lien Obligations and (f) any other asset that does not secure First Lien Obligations.
fair market value means, with respect to any asset or liability, the fair market value of such asset or liability as determined by the Issuer in good faith; provided that if the fair market value is equal to or exceeds $25.0 million, such determination shall be made by the Board of Directors of the Issuer.
First Lien Agent means the administrative agent and the collateral agent under the Senior Credit Facility.
First Lien Credit Documents means the Senior Credit Facility, the other Loan Documents (as defined in the Senior Credit Facility), and each of the other agreements, documents, and instruments providing for or evidencing any other First Lien Obligation and any other document or instrument executed or delivered at any time in connection with any First Lien Obligation (including any intercreditor or joinder agreement among holders of First Lien Obligations but excluding Secured Hedge Agreements and the documents governing the Cash Management Obligations), to the extent such are effective at the relevant time, as each may be amended, modified, restated, supplemented, replaced or refinanced from time to time.
First Lien Documents means the First Lien Credit Documents, the Secured Hedge Agreements, and any and all documents governing the Cash Management Obligations.
First Lien Lenders means the Lenders from time to time party to, and as defined in, the Senior Credit Facility, together with their respective successors and assigns; provided that the term First Lien Lender shall in any event also include each letter of credit issuer and swingline lender under the Senior Credit Facility, including, without limitation, the Issuing Bank, the Swingline Lender and any Agent under (and each as defined in) the Senior Credit Facility.
First Lien Obligations means (i) all Obligations under (and as defined in) the Senior Credit Facility of the Issuer and the Guarantors, under any other document relating to the Senior Credit Facility and any other Credit Facilities incurred under Section 4.09(b)(1) hereof, (ii) all Secured Hedging Obligations and (iii) all Cash Management Obligations; provided that the aggregate principal amount of, without duplication, revolving credit loans, letters of credit, term loans, other loans, notes or similar instruments (excluding, in any event, Cash Management Obligations and Secured Hedging Obligations) provided for under the Senior Credit Facility or any other document relating to the Senior Credit Facility (or any refinancing thereof) in excess of the amount permitted under Section 4.09(b)(1) hereof and any interest relating to such excess amount, shall not constitute First Lien Obligations for purposes of this Indenture. First Lien Obligations shall in any event include: (a) all interest accrued or accruing, or which would accrue, absent commencement of an Insolvency or Liquidation Proceeding (and the effect of
provisions such as Section 502(b)(2) of the United States Bankruptcy Code), on or after the commencement of an Insolvency or Liquidation Proceeding in accordance with the rate specified in the relevant First Lien Document, whether or not the claim for such interest is allowed or allowable as a claim in such Insolvency or Liquidation Proceeding, (b) any and all fees and expenses (including attorneys and/or financial consultants fees and expenses) incurred by the First Lien Agent and the First Lien Secured Parties on or after the commencement of an Insolvency or Liquidation Proceeding, whether or not the claim for fees and expenses is allowed or allowable under Section 502 or 506(b) of the United States Bankruptcy Code or any other provision of the United States Bankruptcy Code or any similar federal, state or foreign law for the relief of debtors as a claim in such Insolvency or Liquidation Proceeding, and (c) all obligations and liabilities of the Issuer and each Guarantor under each First Lien Document to which it is a party which, but for the automatic stay under Section 362(a) of the United States Bankruptcy Code, would become due and payable.
First Lien Secured Parties has the meaning given to the term First-Lien Creditors in the Intercreditor Agreement.
First Priority Liens means all Liens that secure the First Lien Obligations.
Fixed Charge Coverage Ratio means, with respect to any specified Person for any period, the ratio of EBITDA of such Person and its Restricted Subsidiaries for such period to the Fixed Charges of such Person and its Restricted Subsidiaries for such period. In the event that the specified Person or any of its Restricted Subsidiaries incurs, repays, repurchases, redeems, defeases or otherwise retires or discharges or reprices the cost of any Indebtedness (other than ordinary course working capital and revolving credit borrowings) or issues, repurchases or redeems Preferred Stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the Calculation Date), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, repayment, repurchase, redemption, defeasance or other retirement or discharge or repricing of Indebtedness, or such issuance, repurchase or redemption of Preferred Stock, and the use of the proceeds therefrom as if the same had occurred at the beginning of the applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge Coverage Ratio:
(1) acquisitions of a business or operations (and ownership interests therein) or an Investment in a business or operations that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers or consolidations and including any related financing transactions, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date shall be given pro forma effect as if they had occurred on the first day of the four-quarter reference period and EBITDA for such reference period shall be calculated on a pro forma basis determined in good faith by a responsible financial or accounting officer of the Issuer and shall comply with Regulation S-X, except that the pro forma calculations may also include reasonably identifiable and factually supportable operating expense reductions for which the steps necessary for realization have been taken or are reasonably expected to be completed within 12 months of the transaction and are set forth in an Officers Certificate;
(2) the EBITDA attributable to operations or businesses (and ownership interests therein) disposed of on or prior to the Calculation Date shall be excluded;
(3) the Fixed Charges attributable to operations or businesses (and ownership interests therein) disposed of on or prior to the Calculation Date, shall be excluded, but only to the extent that the obligations giving rise to such Fixed Charges shall not be obligations of the specified Person or any of its Restricted Subsidiaries following the Calculation Date;
(4) any Person that is a Restricted Subsidiary on the Calculation Date shall be deemed to have been a Restricted Subsidiary at all times during such four-quarter period;
(5) any Person that is not a Restricted Subsidiary on the Calculation Date shall be deemed not to have been a Restricted Subsidiary at any time during such four-quarter period; and
(6) if any Indebtedness (other than ordinary course working capital and revolving credit borrowings) bears a floating rate of interest and is being given pro forma effect, the interest expense on such Indebtedness will be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Issuer to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period except as set forth in the first paragraph of this definition. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Issuer may designate.
Fixed Charges means, with respect to any specified Person for any period, the sum, without duplication, of:
(1) Consolidated Interest Expense of such Person for such period;
(2) all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Preferred Stock during such period; and
(3) all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Disqualified Stock during such period.
Foreign Subsidiary means, with respect to any Person, any Restricted Subsidiary of such Person that is not organized or existing under the laws of the United States, any state thereof or the District of Columbia and any Restricted Subsidiary of such Foreign Subsidiary.
GAAP means generally accepted accounting principles in the United States which are in effect on the Issue Date. At any time after the Issue Date, the Issuer may elect to apply IFRS accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this Indenture); provided that any such election, once made, shall be irrevocable; provided, further that any calculation or determination in this Indenture that requires the application of GAAP for periods that include fiscal quarters ended prior to the Issuers election to apply IFRS shall remain as previously calculated or determined in accordance with
GAAP. The Issuer shall give notice of any such election made in accordance with this definition to the Trustee and the Holders of Notes.
Global Note Legend means the legend set forth in Section 2.06(g)(ii) hereof, which is required to be placed on all Global Notes issued under this Indenture.
Global Notes means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes, substantially in the form of Exhibit A hereto, issued in accordance with Section 2.01, 2.06(b), 2.06(d) or 2.06(f) hereof.
Government Securities means securities that are:
(1) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged; or
(2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of the issuers thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such Government Securities held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest on the Government Securities evidenced by such depository receipt.
guarantee means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness or other obligations and, when used as a verb, shall have a corresponding meaning.
Guarantee means the guarantee by any Guarantor of the Issuers Obligations under this Indenture and the Notes.
Guarantor means each Restricted Subsidiary, other than the Receivables Subsidiary, that Guarantees the Notes in accordance with the terms of this Indenture.
Heartland means Heartland Industrial Partners, L.P., a Delaware limited partnership, and its successors.
Heartland Advisory Agreement means that certain advisory services agreement between the Issuer and Heartland, as in effect on the date of this Indenture, or any amendment or supplement thereto that, taken in its entirety, is no less favorable to the Issuer than such agreement as in effect on the date of this Indenture.
Hedge Bank means any Person that is a First Lien Lender or an affiliate of a First Lien Lender at the time it enters into a Secured Hedge Agreement, in its capacity as a party thereto, and such Persons successors and assigns.
Hedging Obligations means, with respect to any Person, the obligations of such Person under any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign exchange contract, currency swap agreement or similar agreement providing for the transfer or mitigation of interest rate or currency risks either generally or under specific contingencies.
Holder means the Person in whose name a Note is registered on the Registrars books.
IFRS means the International Financial Reporting Standards as adopted by the International Accounting Standards Board.
Indebtedness means, with respect to any Person, without duplication:
(1) any indebtedness (including principal and premium) of such Person, whether or not contingent:
(a) in respect of borrowed money;
(b) evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers acceptances (or, without duplication, reimbursement agreements in respect thereof);
(c) representing the balance deferred and unpaid of the purchase price of any property (including Capitalized Lease Obligations), except (i) any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business that are not overdue by 90 days or more or are being contested in good faith and (ii) any earn-out obligations until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP; or
(d) representing any Hedging Obligations;
if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP;
(2) to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the obligations of the type referred to in clause (1) of a third Person (whether or not such items would appear upon the balance sheet of such obligor or guarantor), other than by endorsement of negotiable instruments for collection in the ordinary course of business; and
(3) to the extent not otherwise included, the obligations of the type referred to in clause (1) of a third Person secured by a Lien on any asset owned by such first Person, whether or not such Indebtedness is assumed by such first Person;
provided, however, that notwithstanding the foregoing, Indebtedness shall be deemed not to include Contingent Obligations incurred in the ordinary course of business.
Indenture means this Indenture, as amended or supplemented from time to time.
Independent Financial Advisor means an accounting, appraisal, investment banking firm or consultant to Persons engaged in Similar Businesses of nationally recognized standing that is, in the good faith judgment of the Issuer, qualified to perform the task for which it has been engaged.
Indirect Participant means a Person who holds a beneficial interest in a Global Note through a Participant.
Initial Notes as defined in the recitals hereto.
Initial Purchasers means Credit Suisse Securities (USA) LLC, Banc of America Securities LLC, J.P. Morgan Securities Inc., Jefferies & Company, Inc. and KeyBanc Capital Markets Inc.
Insolvency or Liquidation Proceeding means (a) any voluntary or involuntary case or proceeding under the United States Bankruptcy Code with respect to the Issuer or any Guarantor, (b) any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to the Issuer or any Guarantor or with respect to a material portion of its respective assets, (c) any liquidation, dissolution, reorganization or winding up of the Issuer or any Guarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (d) any assignment for the benefit of creditors or any other marshalling of assets and liabilities of the Issuer or any Guarantor.
Intercreditor Agreement means the Intercreditor Agreement dated on or about the Issue Date among the Second Lien Agent, the First Lien Agent, the Issuer and each other Guarantor named therein, as such agreement may be amended, restated, supplemented or otherwise modified from time to time.
Interest Payment Date means June 15 and December 15 of each year to stated maturity.
Investment Grade Rating means a rating equal to or higher than Baa3 (or the equivalent) by Moodys and BBB- (or the equivalent) by S&P.
Investments means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, trade credit, advances to customers, commissions, travel and similar advances to officers and employees, in each case made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of the Issuer in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property. For purposes of the definition of Unrestricted Subsidiary and Section 4.07 hereof:
(1) Investments shall include the portion (proportionate to the Issuers equity interest in such Subsidiary) of the fair market value of the net assets of a Subsidiary of the Issuer
at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Issuer shall be deemed to continue to have a permanent Investment in an Unrestricted Subsidiary in an amount (if positive) equal to:
(a) the Issuers Investment in such Subsidiary at the time of such redesignation; less
(b) the portion (proportionate to the Issuers Equity Interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation; and
(2) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer.
Issue Date means December 29, 2009.
Issuer has the meaning given in the preamble.
Issuer Order means a written request or order signed on behalf of the Issuer by any Officer of the Issuer and delivered to the Trustee.
Legal Holiday means a Saturday, a Sunday or a day on which commercial banking institutions are not required to be open in the State of New York.
Legended Regulation S Global Note means a Global Note in the form of Exhibit A hereto bearing the Global Note Legend and the Regulation S Global Note Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount at maturity of the Notes initially sold in reliance on Rule 903 of Regulation S.
Letter of Transmittal means the letter of transmittal to be prepared by the Issuer and sent to all Holders of the Notes for use by such Holders in connection with the Registered Exchange Offer.
Lien means, with respect to any asset, any mortgage, lien (statutory or otherwise), pledge, hypothecation, charge, security interest, preference, priority or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.
Moodys means Moodys Investors Service, Inc. and any successor to its rating agency business.
Net Income means, with respect to any Person, the net income (loss) of such Person, determined on a consolidated basis in accordance with GAAP (excluding any non-controlling interests) and before any reduction in respect of Preferred Stock (other than Disqualified Stock) dividends.
Net Proceeds means the aggregate cash proceeds received by the Issuer or any of its Restricted Subsidiaries in respect of any Asset Sale, including any cash received upon the sale or other disposition of any Designated Non-cash Consideration received in any Asset Sale, net of the direct costs relating to such Asset Sale and the sale or disposition of any Designated Non-cash Consideration, including legal, accounting and investment banking fees, and brokerage and sales commissions, any relocation expenses incurred as a result thereof, taxes paid or payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements), amounts required to be applied to the repayment of principal, premium, if any, and interest on Secured Indebtedness required (other than required by clause (1) of Section 4.10(b) hereof) to be paid as a result of such transaction and any deduction of appropriate amounts to be provided by the Issuer or any of the Restricted Subsidiaries as a reserve in accordance with GAAP against any liabilities associated with the asset disposed of in such transaction and retained by the Issuer or any of the Restricted Subsidiaries after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction.
Non-U.S. Person means a Person who is not a U.S. Person.
Notes means the Initial Notes and more particularly means any Note authenticated and delivered under this Indenture. For all purposes of this Indenture, the term Notes shall also include any Additional Notes that may be issued under a supplemental indenture. For purposes of this Indenture, all references to Notes to be issued or authenticated upon transfer, replacement or exchange shall be deemed to refer to Notes of the applicable series.
Obligations in respect of any Indebtedness means any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, federal or foreign law), penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and bankers acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing such Indebtedness.
Offering Circular means the offering circular, dated December 17, 2009, relating to the sale of the Notes.
Officer means the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Financial Officer, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary of the Issuer.
Officers Certificate means a certificate signed on behalf of the Issuer by any Officer of the Issuer that meets the requirements set forth in this Indenture.
Opinion of Counsel means a written opinion reasonably acceptable to the Trustee from legal counsel. The counsel may be an employee of or counsel to the Issuer or the Trustee.
Other Second Lien Obligations means other Indebtedness of the Issuer and its Restricted Subsidiaries that is equally and ratably secured with the Notes and is designated by the Issuer as an Other Second Lien Obligation.
Participant means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).
Permitted Group means any group of investors that is deemed to be a person (as that term is used in Section 13(d)(3) of the Exchange Act) by virtue of the Shareholders Agreement, as the same may be amended, modified or supplemented from time to time, provided that no single Person (other than the Principals) beneficially owns (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) (together with its Affiliates) more of the Voting Stock of the Issuer that is beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) by such group of investors than is then collectively beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) by the Principals in the aggregate.
Permitted Investments means:
(1) any Investment in the Issuer or any of its Restricted Subsidiaries;
(2) any Investment in cash and Cash Equivalents;
(3) any Investment by the Issuer or any of its Restricted Subsidiaries in a Person that is engaged in a Similar Business if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary; or
(b) such Person, in one transaction or a series of related transactions, is merged or consolidated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Issuer or a Restricted Subsidiary,
and, in each case, any Investment held by such Person; provided, that such Investment was not acquired by such Person in contemplation of such acquisition, merger, consolidation or transfer;
(4) any Investment in securities or other assets not constituting cash or Cash Equivalents and received in connection with an Asset Sale made pursuant to the provisions of Section 4.10 hereof or any other disposition of assets not constituting an Asset Sale; provided that such securities or other assets, as well as any Designated Non-cash Consideration, received in an Asset Sale or an exchange or swap of assets shall be pledged as Collateral under the Security Documents to the extent the assets subject to such Asset Sale or exchange or swap of assets constituted Collateral, with the Lien on such Collateral securing the Notes being of the same priority with respect to the Notes as the Lien on the assets disposed of;
(5) any Investment existing on the Issue Date;
(6) any Investment acquired by the Issuer or any of its Restricted Subsidiaries:
(a) in exchange for any other Investment or accounts receivable held by the Issuer or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable; or
(b) as a result of a foreclosure by the Issuer or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;
(7) Hedging Obligations permitted under clause (10) of Section 4.09(b) hereof;
(8) Investments the payment for which consists of Equity Interests (exclusive of Disqualified Stock) of the Issuer, or any of its direct or indirect parent companies; provided, however, that such Equity Interests shall not increase the amount available for Restricted Payments under clause (3) of Section 4.07(a) hereof;
(9) guarantees of Indebtedness permitted under Section 4.09 hereof;
(10) any transaction to the extent it constitutes an Investment that is permitted and made in accordance with the provisions of Section 4.11(b) hereof (except transactions described in clauses (2) and (4) of Section 4.11(b) hereof);
(11) additional Investments having an aggregate fair market value, taken together with all other Investments made pursuant to this clause (11) that are at that time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), not to exceed the greater of (x) $25.0 million and (y) 3% of Total Assets (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value);
(12) loans and advances to, or guarantees of Indebtedness of, officers, directors and employees in an amount not to exceed $5.0 million at any time outstanding;
(13) loans and advances to officers, directors and employees for business related travel expenses, moving expenses and other similar expenses, in each case incurred in the ordinary course of business consistent with past practice;
(14) lease, utility and other similar deposits in the ordinary course of business; and
(15) the acquisition by a Receivables Subsidiary in connection with a Qualified Receivables Transaction of Equity Interests of a trust or other Person established by such Receivables Subsidiary to effect such Qualified Receivables Transaction; and any other Investment by the Issuer or a Subsidiary of the Issuer in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person in connection with a Qualified Receivables Transaction.
Permitted Liens means, with respect to any Person:
(1) pledges or deposits by such Person under workmens compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(2) Liens imposed by law, such as carriers, warehousemens and mechanics Liens, in each case for sums not yet overdue for a period of more than 30 days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;
(3) Liens for taxes, assessments or other governmental charges not yet overdue for a period of more than 30 days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;
(4) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of its business;
(5) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental, to the conduct of the business of such Person or to the ownership of its properties which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;
(6) Liens securing Indebtedness permitted to be incurred pursuant to clause (4), (12) or (18) of Section 4.09(b) hereof; provided that such Liens securing Indebtedness incurred pursuant to clause (4) extend only to the assets acquired and such Liens securing Indebtedness incurred pursuant to clauses (12) and (18) extend only to the assets of Foreign Subsidiaries;
(7) Liens existing on the Issue Date (other than Liens in favor of secured parties under the Senior Credit Facility);
(8) Liens on property or shares of stock of a Person at the time such Person becomes a Subsidiary; provided, however, that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary; provided, further, however, that such Liens may not extend to any other property owned by the Issuer or any of its Restricted Subsidiaries;
(9) Liens on property at the time the Issuer or a Restricted Subsidiary acquired the property, including any acquisition by means of a merger or consolidation with or into the Issuer or any of its Restricted Subsidiaries; provided, however, that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, however, that the Liens may not extend to any other property owned by the Issuer or any of its Restricted Subsidiaries;
(10) Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to the Issuer or a Guarantor permitted to be incurred in accordance with Section 4.09 hereof;
(11) Liens securing Hedging Obligations;
(12) Liens on specific items of inventory of other goods and proceeds of any Person securing such Persons obligations in respect of bankers acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(13) leases, subleases, licenses or sublicenses granted to others in the ordinary course of business which do not materially interfere with the ordinary conduct of the business of the Issuer or any of its Restricted Subsidiaries and do not secure any Indebtedness;
(14) Liens arising from Uniform Commercial Code financing statement filings regarding operating leases entered into by the Issuer and its Restricted Subsidiaries in the ordinary course of business;
(15) Liens in favor of the Issuer or any Guarantor;
(16) Liens on equipment of the Issuer or any of its Restricted Subsidiaries granted in the ordinary course of business to the Issuers clients not related to Indebtedness;
(17) Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancing, refunding, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (7), (8) and (9); provided, however, that (a) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property), and (b) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (i) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (7), (8) and (9) at the time the original Lien became a Permitted Lien under this Indenture, and (ii) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement;
(18) deposits made in the ordinary course of business to secure liability to insurance carriers;
(19) other Liens securing Indebtedness and other obligations incurred in the ordinary course of business which obligations do not exceed $10.0 million, at any one time outstanding;
(20) Liens securing judgments for the payment of money not constituting an Event of Default under clause (5) under Section 6.01 hereof so long as such Liens are adequately bonded and any appropriate legal proceedings that may have been duly initiated for the review of such judgment have not been finally terminated or the period within which such proceedings may be initiated has not expired;
(21) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(22) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code (or any comparable or successor provision) on items in the course of
collection, (ii) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business, and (iii) in favor of banking institutions arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;
(23) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 4.09 hereof; provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;
(24) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;
(25) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Issuer or any of its Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Issuer and its Restricted Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the Issuer or any of its Restricted Subsidiaries in the ordinary course of business;
(26) Liens on assets of the Issuer, a Guarantor or a Receivables Subsidiary incurred in connection with a Qualified Receivables Transaction;
(27) Liens incurred to secure Other Second Lien Obligations permitted to be incurred pursuant to Section 4.09(a) hereof or clause (12) of Section 4.09(b) hereof; provided that, at the time of incurrence and after giving pro forma effect thereto, the Consolidated Secured Debt Ratio of the Issuer would be no greater than 3.75 to 1.00; and
(28) Liens on the Collateral securing:
(a) the Notes, the Guarantees thereof and other Obligations under this Indenture and in respect thereof and any obligations owing to the Trustee or the Second Lien Agent under this Indenture or the Security Documents; and
(b) the First Lien Obligations.
For purposes of this definition, the term Indebtedness shall be deemed to include interest on such Indebtedness.
Person means any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
Preferred Stock means any Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution or winding up.
Private Placement Legend means the legend set forth in Section 2.06(g)(i) hereof to be placed on all Notes issued under this Indenture, except where otherwise permitted by the provisions of this Indenture.
Principals means Heartland and any of its Affiliates or Related Parties.
Qualified Receivables Transaction means any transaction or series of transactions entered into by the Issuer or any of its Subsidiaries pursuant to which the Issuer or any of its Subsidiaries sells, conveys or otherwise transfers to (i) a Receivables Subsidiary (in the case of a transfer by the Issuer or any of its Subsidiaries) and (ii) any other Person (in the case of a transfer by a Receivables Subsidiary), or grants a security interest in, any accounts receivable (whether now existing or arising in the future) of the Issuer or any of its Subsidiaries, and any assets related thereto including, without limitation, all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable.
QIB means a qualified institutional buyer as defined in Rule 144A.
Receivables means receivables, chattel paper, instruments, documents or intangibles evidencing or relating to the right to payment of money. Receivables shall include the indebtedness and payment obligations of any Person to the Issuer or a Subsidiary arising from a sale of merchandise or services by the Issuer or such Subsidiary in the ordinary course of its business, including any right to payment for goods sold or for services rendered, and including the right to payment of any interest, finance charges, returned check or late charges and other obligations of such Person with respect thereto. Receivables shall also include (a) all of the Issuers or such Subsidiarys interest in the merchandise (including returned merchandise), if any, relating to the sale which gave rise to such Receivable, (b) all other security interests or Liens and property subject thereto from time to time purporting to secure payment of such Receivable, whether pursuant to the contract related to such Receivable or otherwise, together with all financing statements signed by an obligor describing any collateral securing such Receivable, and (c) all guarantees, insurance, letters of credit and other agreements or arrangements of whatever character from time to time supporting or securing payment of such Receivable whether pursuant to the contract related to such Receivable or otherwise.
Receivables Fees means distributions or payments made directly or by means of discounts with respect to any participation interests issued or sold in connection with, and all other fees paid to a Person that is a Restricted Subsidiary in connection with, any Qualified Receivables Transaction.
Receivables Subsidiary means a Subsidiary of the Issuer which engages in no activities other than in connection with the financing of accounts receivable and which is designated by the Board of Directors of the Issuer (as provided below) as a Receivables Subsidiary (a) no portion of the Indebtedness or any other Obligations (contingent or otherwise) of which (i) is guaranteed by the Issuer or any Subsidiary of the Issuer (excluding guarantees of Obligations (other than the principal of, and interest on, Indebtedness) pursuant to representations, warranties, covenants and indemnities entered into in the ordinary course of business in connection with a Qualified Receivables Transaction), (ii) is recourse to or obligates the Issuer or any Subsidiary of the Issuer in any way other than pursuant to representations, warranties, covenants and indemnities entered into in the ordinary course of business in connection with a Qualified Receivables Transaction or (iii) subjects any property or asset of the Issuer or any Subsidiary of
the Issuer (other than accounts receivable and related assets as provided in the definition of Qualified Receivables Transaction), directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to representations, warranties, covenants, limited repurchase obligations and indemnities entered into in the ordinary course of business in connection with a Qualified Receivables Transaction, (b) with which neither the Issuer nor any Subsidiary of the Issuer has any material contract, agreement, arrangement or understanding other than on terms no less favorable to the Issuer or such Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Issuer, other than fees payable in the ordinary course of business in connection with servicing accounts receivable, and (c) with which neither the Issuer nor any Subsidiary of the Issuer has any obligation to maintain or preserve such Subsidiarys financial condition or cause such Subsidiary to achieve certain levels of operating results. Any such designation by the Board of Directors of the Issuer shall be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of the Board of Directors (which resolution shall be conclusive) of the Issuer giving effect to such designation and an Officers Certificate certifying that such designation complied with the foregoing conditions.
Record Date for the interest or Additional Interest, if any, payable on any applicable Interest Payment Date means June 1 or December 1 (whether or not a Business Day) next preceding such Interest Payment Date.
Registered Exchange Offer has the meaning set forth in the Registration Rights Agreement.
Registration Rights Agreement means the Registration Rights Agreement with respect to the Notes dated as of the Issue Date, among the Issuer, the Guarantors and the Initial Purchasers.
Regulation S means Regulation S promulgated under the Securities Act.
Regulation S Global Note means a Legended Regulation S Global Note or an Unlegended Regulation S Global Note, as appropriate.
Related Business Assets means assets (other than cash or Cash Equivalents) used or useful in a Similar Business, provided that any assets received by the Issuer or a Restricted Subsidiary in exchange for assets transferred by the Issuer or a Restricted Subsidiary shall not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary.
Related Party means:
(1) any controlling stockholder, general partner or managing member of any Principal, any majority owned Subsidiary of any Principal, or any immediate family member (in the case of an individual) of any Principal; or
(2) any trust, corporation, partnership, limited liability company or other entity, the beneficiaries, stockholders, partners, members, owners or Persons beneficially holding a majority interest of which consist of any one or more Principals and/or such other Persons referred to in the immediately preceding clause (1).
Responsible Officer means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such Persons knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
Restricted Definitive Note means a Definitive Note bearing the Private Placement Legend.
Restricted Global Note means a Global Note bearing the Private Placement Legend.
Restricted Investment means an Investment other than a Permitted Investment.
Restricted Period means the 40-day distribution compliance period as defined in Regulation S.
Restricted Subsidiary means, at any time, any direct or indirect Subsidiary of the Issuer (including any Foreign Subsidiary) that is not then an Unrestricted Subsidiary; provided, however, that upon the occurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in the definition of Restricted Subsidiary.
Rule 144 means Rule 144 promulgated under the Securities Act.
Rule 144A means Rule 144A promulgated under the Securities Act.
Rule 903 means Rule 903 promulgated under the Securities Act.
Rule 904 means Rule 904 promulgated under the Securities Act.
S&P means Standard & Poors, a division of The McGraw-Hill Companies, Inc., and any successor to its rating agency business.
Sale and Lease-Back Transaction means any arrangement providing for the leasing by the Issuer or any of its Restricted Subsidiaries of any real or tangible personal property, which property has been or is to be sold or transferred by the Issuer or such Restricted Subsidiary to a third Person in contemplation of such leasing.
SEC means the U.S. Securities and Exchange Commission.
Second Lien Agent means The Bank of New York Mellon Trust Company, N.A., as collateral agent for the Trustee and the Holders of the Notes.
Second Lien Obligations means all Indebtedness and other obligations with respect to the Notes, this Indenture, the Guarantees thereof and the Security Documents.
Second Priority Liens means all Liens that secure the Second Lien Obligations.
Secured Hedge Agreements means each agreement that governs Hedging Obligations by and between the Issuer or any Guarantor, on the one hand, and any Hedge Bank from time to time, but
only to the extent such agreement is permitted under the Senior Credit Facility and constitutes an Obligation (as such term is defined under the Senior Credit Facility); provided, however, that such Hedging Obligations shall not, solely by virtue of constituting an Obligation (as so defined), also constitute Indebtedness under the Senior Credit Facility.
Secured Hedging Obligations means (i) obligations (including obligations which, but for the automatic stay under Section 362(a) of the United States Bankruptcy Code, would become due) and liabilities, whether now existing or hereafter arising (including, without limitation, indemnities, fees and interest thereon and all interest and fees that accrue on or after the commencement of any Insolvency or Liquidation Proceeding at the rate provided for in the respective Secured Hedge Agreement, whether or not a claim for post-petition interest or fees is allowed in any such Insolvency or Liquidation Proceeding), of the Issuer or any Guarantor owing to any Hedge Bank, now existing or hereafter incurred under, or arising out of or in connection with, any Secured Hedge Agreement (including all such obligations and indebtedness under any guarantee of any such Secured Hedge Agreement to which the Issuer or such Guarantor is a party) and (ii) all performance and compliance obligations by the Issuer or any Guarantor under any Secured Hedge Agreement.
Secured Indebtedness means any Indebtedness of the Issuer or any of its Restricted Subsidiaries secured by a Lien.
Securities Act means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
Security Documents means the security documents granting a security interest in any assets of any Person to secure the Obligations under this Indenture, the Notes and the Guarantees as each may be amended, restated, supplemented or otherwise modified from time to time.
Senior Credit Facility means the Credit Facility under the Amended and Restated Credit Agreement dated as of December 16 , 2009, by and among the Issuer, the lenders party thereto in their capacities as lenders thereunder and JPMorgan Chase Bank, N.A., as Administrative Agent, including any guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements, refundings or refinancings thereof and any indentures or credit facilities or commercial paper facilities with banks or other institutional lenders or investors that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount borrowable thereunder or alters the maturity thereof (provided that such increase in borrowings is permitted under Section 4.09 hereof).
Shareholders Agreement means that certain shareholders agreement by and among Heartland and other investors party thereto relating to their ownership in the Issuer as in effect on the Issue Date.
Shelf Registration Statement means the Shelf Registration Statement as defined in the Registration Rights Agreement.
Significant Subsidiary means any Restricted Subsidiary that would be a significant subsidiary as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the Issue Date.
Similar Business means any business conducted or proposed to be conducted by the Issuer and its Restricted Subsidiaries on the Issue Date or any business that is similar, reasonably related, incidental or ancillary thereto.
Subsidiary means, with respect to any Person:
(1) any corporation, association, or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof or is consolidated under GAAP with such Person at such time; and
(2) any partnership, joint venture, limited liability company or similar entity of which
(x) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise, and
(y) such Person or any Restricted Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
Total Assets means the total assets of the Issuer and its Restricted Subsidiaries on a consolidated basis, as shown on the most recent balance sheet of the Issuer or such other Person as may be expressly stated.
Transaction means the (i) issuance of the Notes, (ii) the purchase, redemption or retirement of all of the Issuers outstanding 97/8% senior subordinated notes due 2012, (iii) execution and delivery of the Senior Credit Facility and (iv) the other related transactions to be consummated in connection with the foregoing on or shortly following the Issue Date.
Treasury Rate means, as of any Redemption Date, the yield to maturity as of such Redemption Date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to the Redemption Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the Redemption Date to December 15, 2013; provided, however, that if the period from the Redemption Date to December 15, 2013 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.
Trust Indenture Act means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa77bbbb).
Trustee means The Bank of New York Mellon Trust Company N.A., as trustee, until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
Unlegended Regulation S Global Note means a permanent Global Note in the form of Exhibit A hereto bearing the Global Note Legend deposited with or on behalf of and registered in the name of the Depositary or its nominee and issued upon expiration of the Restricted Period.
Unrestricted Definitive Note means one or more Definitive Notes that do not bear and are not required to bear the Private Placement Legend.
Unrestricted Global Note means a permanent Global Note, substantially in the form of Exhibit A attached hereto, that bears the Global Note Legend and that has the Schedule of Exchanges of Interests in the Global Note attached thereto, and that is deposited with or on behalf of and registered in the name of the Depositary, representing Notes that do not bear the Private Placement Legend.
Unrestricted Subsidiary means:
(1) any Subsidiary of the Issuer which at the time of determination is an Unrestricted Subsidiary (as designated by the Issuer, as provided below); and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Issuer may designate any Subsidiary of the Issuer (including any existing Subsidiary and any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on, any property of, the Issuer or any Subsidiary of the Issuer (other than solely any Subsidiary of the Subsidiary to be so designated); provided that
(1) any Unrestricted Subsidiary must be an entity of which the Equity Interests entitled to cast at least a majority of the votes that may be cast by all Equity Interests having ordinary voting power for the election of directors or Persons performing a similar function are owned, directly or indirectly, by the Issuer;
(2) such designation complies with Section 4.07 hereof; and
(3) each of:
(a) the Subsidiary to be so designated; and
(b) its Subsidiaries
has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Issuer or any Restricted Subsidiary.
The Issuer may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that, immediately after giving effect to such designation, no Default shall have occurred and be continuing and either:
(x) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test described in Section 4.09(a) hereof; or
(y) the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries would be greater than such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such designation,
in each case on a pro forma basis taking into account such designation.
Any such designation by the Issuer shall be notified by the Issuer to the Trustee by promptly filing with the Trustee a copy of the resolution of the Board of Directors of the Issuer or any committee thereof giving effect to such designation and an Officers Certificate certifying that such designation complied with the foregoing provisions.
U.S. Person means a U.S. person as defined in Rule 902(k) under the Securities Act.
Unsecured Indebtedness means Indebtedness that is not Secured Indebtedness.
Voting Stock of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.
Weighted Average Life to Maturity means, when applied to any Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, at any date, the quotient obtained by dividing:
(1) the sum of the products of the number of years from the date of determination to the date of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Disqualified Stock or Preferred Stock multiplied by the amount of such payment; by
(2) the sum of all such payments.
Wholly Owned Subsidiary of any Person means a Subsidiary of such Person, 100% of the outstanding Equity Interests of which (other than directors qualifying shares) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person.
Section 1.02 Other Definitions.
Term |
|
Defined in |
|
|
|
|
|
Affiliate Transaction |
|
4.11 |
|
Asset Sale Offer |
|
4.10 |
|
Authentication Order |
|
2.02 |
|
Change of Control Offer |
|
4.14 |
|
Change of Control Payment |
|
4.14 |
|
Change of Control Payment Date |
|
4.14 |
|
Covenant Defeasance |
|
8.03 |
|
DTC |
|
2.03 |
|
Event of Default |
|
6.01 |
|
Term |
|
Defined in |
|
|
|
|
|
Excess Proceeds |
|
4.10 |
|
incur |
|
4.09 |
|
Legal Defeasance |
|
8.02 |
|
Note Register |
|
2.03 |
|
Offer Amount |
|
3.09 |
|
Offer Period |
|
3.09 |
|
Pari Passu Indebtedness |
|
4.10 |
|
Paying Agent |
|
2.03 |
|
Purchase Date |
|
3.09 |
|
Redemption Date |
|
3.07 |
|
Replacement Assets |
|
4.10 |
|
Refinancing Indebtedness |
|
4.09 |
|
Registrar |
|
2.03 |
|
Restricted Payments |
|
4.07 |
|
Successor Company |
|
5.01 |
|
Successor Person |
|
5.01 |
|
Treasury Capital Stock |
|
4.07 |
|
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture expressly refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part of this Indenture. Notwithstanding anything to the contrary, the Issuer and the Guarantors shall not be required to comply with Section 314 of the Trust Indenture Act.
The following Trust Indenture Act terms used in this Indenture have the following meanings:
indenture securities means the Notes;
indenture security Holder means a Holder of a Note;
indenture to be qualified means this Indenture;
indenture trustee or institutional trustee means the Trustee; and
obligor on the Notes and the Guarantees means the Issuer and the Guarantors, respectively, and any successor obligor upon the Notes and the Guarantees, respectively.
All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by SEC rule under the Trust Indenture Act have the meanings so assigned to them.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) or is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular;
(e) will shall be interpreted to express a command;
(f) provisions apply to successive events and transactions;
(g) references to sections of, or rules under, the Securities Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time;
(h) unless the context otherwise requires, any reference to an Article, Section or clause refers to an Article, Section or clause, as the case may be, of this Indenture; and
(i) the words herein, hereof and hereunder and other words of similar import refer to this Indenture as a whole and not any particular Article, Section, clause or other subdivision.
Section 1.05 Acts of Holders.
Section 2.01 Form and Dating; Terms.
The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and the Issuer, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
The Notes shall be subject to repurchase by the Issuer pursuant to an Asset Sale Offer as provided in Section 4.10 hereof or a Change of Control Offer as provided in Section 4.14 hereof. The Notes shall not be redeemable, other than as provided in Article 3.
Additional Notes ranking pari passu with the Initial Notes may be created and issued from time to time by the Issuer without notice to or consent of the Holders and shall be consolidated with and form a single class with the Initial Notes and shall have the same terms as to status, redemption or otherwise as the Initial Notes; provided that the Issuers ability to issue Additional Notes shall be subject to the Issuers compliance with Section 4.09 hereof.
Section 2.02 Execution and Authentication.
At least one Officer shall execute the Notes on behalf of the Issuer by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be entitled to any benefit under this Indenture or be valid or obligatory for any purpose until authenticated substantially in the form of Exhibit A attached hereto by the manual or facsimile signature of the Trustee. The signature shall be conclusive evidence that the Note has been duly authenticated and delivered under this Indenture.
On the Issue Date, the Trustee shall, upon receipt of an Issuer Order (an Authentication Order), authenticate and deliver the Initial Notes. In addition, at any time, from time to time, the Trustee shall upon an Authentication Order authenticate and deliver any Additional Notes and Exchange Notes for an aggregate principal amount specified in such Authentication Order for such Additional Notes or Exchange Notes issued hereunder.
The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Issuer.
Section 2.03 Registrar and Paying Agent.
The Issuer shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (Registrar) in the Borough of Manhattan, City of New York, and an office or agency where Notes may be presented for payment (Paying Agent) in the Borough of Manhattan, City of New York. The Registrar shall keep a register of the Notes (Note Register) and of their transfer and exchange. The Issuer may appoint one or more co-registrars and one or more additional paying agents. The term Registrar includes any co-registrar and the term Paying Agent includes any additional paying agent. The Issuer may change any Paying Agent or Registrar without prior notice to
any Holder. The Issuer shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Issuer fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Issuer or any of its Subsidiaries may act as Paying Agent or Registrar.
The Issuer initially appoints The Depository Trust Company (DTC) to act as Depositary with respect to the Global Notes.
The Issuer initially appoints the Trustee to act as the Paying Agent and Registrar for the Notes and to act as Custodian with respect to the Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Issuer shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or Additional Interest, if any, or interest on the Notes, and will notify the Trustee of any default by the Issuer in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or a Subsidiary) shall have no further liability for the money. If the Issuer or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuer, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with Trust Indenture Act Section 312(a). If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least two Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes and the Issuer shall otherwise comply with Trust Indenture Act Section 312(a).
Section 2.06 Transfer and Exchange.
(1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.
(i) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon the occurrence of any of the events in paragraph (i) or (ii) of Section 2.06(a) hereof and receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder substantially in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to the Issuer or any of its Restricted Subsidiaries, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(F) if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuer shall execute and the Trustee shall authenticate and mail to the Person designated in the instructions a Definitive Note in the applicable principal amount. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall mail such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Legended Regulation S Global Note to Definitive Notes. Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a beneficial interest in the Legended Regulation S Global Note may not be exchanged for a Definitive Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to the expiration of the Restricted Period, except in the case of a transfer pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only upon the occurrence of any of the events in subsection (i) or (ii) of Section 2.06(a) hereof and if:
(A) such exchange or transfer is effected pursuant to the Registered Exchange Offer in accordance with the Registration Rights Agreement and the holder of such beneficial interest, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Issuer;
(B) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder substantially in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder substantially in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon the occurrence of any of the events in subsection (i) or (ii) of Section 2.06(a) hereof and satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuer shall execute and the Trustee shall authenticate and mail to the Person designated in the instructions a Definitive Note in the applicable principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from or through the Depositary and the Participant or Indirect Participant. The Trustee shall mail such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall not bear the Private Placement Legend.
(i) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder substantially in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to the Issuer or any of its Restricted Subsidiaries, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(F) if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the applicable Restricted Global Note, in the case of clause (B) above, the applicable 144A Global Note, and in the case of clause (C) above, the applicable Regulation S Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to the Registered Exchange Offer in accordance with the Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Issuer;
(B) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder
substantially in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraph (ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.
(1) if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from such Holder substantially in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder substantially in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(A) Except as permitted by subparagraph (B) below, unless and until (x) a Note is exchanged for an Exchange Note or sold in connection with an effective Shelf Registration Statement pursuant to the Registration Rights Agreement, (y) with respect to a Restricted Global Note, all of the beneficial interests in such Restricted Global Note have been exchanged for beneficial interests in the Unrestricted Global Note in accordance with clause (j) of this Section 2.06 or the Private Placement Legend has been removed from such Restricted Global Note in accordance with clause (b)(iv), (c)(iii), c(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) of this Section 2.06, or (z) the Issuer determines and there is delivered to the Trustee an Opinion of Counsel reasonably satisfactory to the Trustee and a letter of representation of the Issuer reasonably satisfactory to the Trustee to the effect that the following legend and the related restrictions on transfer are not required in order to maintain compliance with the provisions of the Securities Act, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear a legend (the Private Placement Legend) in substantially the following form:
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
Each Legended Regulation S Global Note shall bear a legend (Regulation S Global Note Legend) in substantially the following form:
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.
Each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall also bear a legend (OID Legend) in substantially the following form:
THIS NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE INTERNAL REVENUE CODE. A HOLDER MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY FOR SUCH NOTES BY SUBMITTING A REQUEST FOR SUCH INFORMATION TO THE ISSUER AT THE FOLLOWING ADDRESS: 39400
WOODWARD AVENUE, SUITE 130, BLOOMFIELD HILLS, MICHIGAN 48304, ATTENTION: CHIEF FINANCIAL OFFICER.
(B) Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) shall not bear the Private Placement Legend.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06(h) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (DTC) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(i) To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof or at the Registrars request.
(ii) No service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.07, 2.10, 3.06, 3.09, 4.10, 4.14 and 9.05 hereof).
(iii) Neither the Registrar nor the Issuer shall be required to register the transfer of or exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(v) The Issuer shall not be required (A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part, or tendered (and not withdrawn) for repurchase in connection with a Change of Control Offer or an Asset Sale Offer, or (C) to register the transfer of or to exchange a Note between a Record Date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuer may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of (and premium, if any) and interest (including Additional Interest, if any) on such Notes and for all other purposes, and none of the Trustee, any Agent or the Issuer shall be affected by notice to the contrary.
(vii) Upon surrender for registration of transfer of any Note at the office or agency of the Issuer designated pursuant to Section 4.02 hereof, the Issuer shall execute, and the Trustee shall
authenticate and mail, in the name of the designated transferee or transferees, one or more replacement Notes of any authorized denomination or denominations of a like aggregate principal amount.
(viii) At the option of the Holder, Notes may be exchanged for other Notes of any authorized denomination or denominations of a like aggregate principal amount upon surrender of the Notes to be exchanged at such office or agency. Whenever any Global Notes or Definitive Notes are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and mail, the replacement Global Notes and Definitive Notes which the Holder making the exchange is entitled to in accordance with the provisions of Section 2.02 hereof.
(ix) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee, the Registrar or the Issuer and the Trustee receives evidence to its satisfaction of the ownership and destruction, loss or theft of any Note, the Issuer shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustees requirements are met. If required by the Trustee or the Issuer, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuer may charge for its expenses in replacing a Note.
Every replacement Note is a contractual obligation of the Issuer and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer, or by any Affiliate of the Issuer, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned shall be so disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgees right to deliver any such direction, waiver or consent with respect to the Notes and that the pledgee is not the Issuer or any obligor upon the Notes or any Affiliate of the Issuer or of such other obligor.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the Issuer may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of certificated Notes but may have variations that the Issuer considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes.
Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under this Indenture.
Section 2.11 Cancellation.
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee or, at the direction of the Trustee, the Registrar or the Paying Agent
and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of cancelled Notes (subject to the record retention requirement of the Exchange Act) in its customary manner. Certification of the disposal of all cancelled Notes shall be delivered to the Issuer upon its request therefor. The Issuer may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Issuer shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such defaulted interest as provided in this Section 2.12. The Trustee shall fix or cause to be fixed each such special record date and payment date; provided that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest. The Trustee shall promptly notify the Issuer of such special record date. At least 15 days before the special record date, the Issuer (or, upon the written request of the Issuer, the Trustee in the name and at the expense of the Issuer) shall mail or cause to be mailed, first-class postage prepaid, to each Holder a notice at his or her address as it appears in the Note Register that states the special record date, the related payment date and the amount of such interest to be paid.
Subject to the foregoing provisions of this Section 2.12 and for greater certainty, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
The Issuer in issuing the Notes may use CUSIP numbers (if then generally in use) and, if so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Holders; provided, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will as promptly as practicable notify the Trustee of any change in the CUSIP numbers.
Section 3.01 Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to Section 3.07 hereof, it shall furnish to the Trustee, at least five Business Days (or such shorter period as may be acceptable to the Trustee) before notice of redemption is required to be mailed or caused to be mailed to Holders pursuant to Section 3.03
hereof but not more than 60 days before a redemption date, an Officers Certificate setting forth (i) the paragraph or subparagraph of such Note and/or Section of this Indenture pursuant to which the redemption shall occur, (ii) the redemption date, (iii) the principal amount of the Notes to be redeemed and (iv) the redemption price.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any time, the Trustee shall select the Notes to be redeemed or purchased (a) if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Notes are listed, (b) on a pro rata basis to the extent practicable or (c) by lot or such other similar method in accordance with the procedures of DTC. In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or purchased shall be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption date by the Trustee from the outstanding Notes not previously called for redemption or purchase.
The Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected shall be in amounts of $2,000 or whole multiples of $1,000 in excess thereof; no Notes of $2,000 or less can be redeemed in part, except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.
Section 3.03 Notice of Redemption.
Subject to Section 3.09 hereof, the Issuer shall mail or cause to be mailed by first-class mail notices of redemption at least 30 days but not more than 60 days before the redemption date to each Holder of Notes to be redeemed at such Holders registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with Article 8 or Article 11 hereof. Except as set forth in Section 3.07(c) and Section 3.07(d) hereof, notices of redemption may not be conditional.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is to be redeemed in part only, the portion of the principal amount of that Note that is to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion of the original Note representing the same indebtedness to the extent not redeemed will be issued in the name of the Holder of the Notes upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(f) that, unless the Issuer defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date;
(g) the paragraph or subparagraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed;
(h) that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes; and
(i) if in connection with a redemption pursuant to Section 3.07(c) or 3.07(d) hereof, any condition to such redemption.
At the Issuers request, the Trustee shall give the notice of redemption in the Issuers name and at its expense; provided that the Issuer shall have delivered to the Trustee, at least five Business Days before notice of redemption is required to be mailed or caused to be mailed to Holders pursuant to this Section 3.03 (unless a shorter notice shall be agreed to by the Trustee), an Officers Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price (except as provided for in Section 3.07(c) and 3.07(d) hereof). The notice, if mailed in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the Holder of any Note designated for redemption in whole or in part shall not affect the validity of the proceedings for the redemption of any other Note. Subject to Section 3.05 hereof, on and after the redemption date, interest ceases to accrue on Notes or portions of Notes called for redemption.
Section 3.05 Deposit of Redemption or Purchase Price.
Prior to 10:00 a.m. (New York City time) on the redemption or purchase date, the Issuer shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued and unpaid interest (including Additional Interest, if any) on all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent shall promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the redemption price of, and accrued and unpaid interest on, all Notes to be redeemed or purchased.
If the Issuer complies with the provisions of the preceding paragraph, on and after the redemption or purchase date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after a Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest to the redemption or purchase date shall be paid to the Person in whose name such Note was registered at the close of business on such Record Date. If any Note called for redemption or purchase shall not be so paid upon surrender for
redemption or purchase because of the failure of the Issuer to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest accrued to the redemption or purchase date not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the Issuer shall issue and the Trustee shall authenticate for the Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered representing the same indebtedness to the extent not redeemed or purchased; provided that each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. It is understood that, notwithstanding anything in this Indenture to the contrary, only an Authentication Order and not an Opinion of Counsel or Officers Certificate is required for the Trustee to authenticate such new Note.
Section 3.07 Optional Redemption.
(a) At any time prior to December 15, 2013, the Issuer may redeem all or a part of the Notes, upon not less than 30 nor more than 60 days prior notice mailed by first-class mail to the registered address of each Holder of Notes, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest and Additional Interest, if any, to the date of redemption (the Redemption Date), subject to the rights of Holders of Notes on the relevant Record Date to receive interest due on the relevant Interest Payment Date.
(b) Until December 15, 2012, the Issuer may, at its option, on one or more occasions redeem up to 35% of the aggregate principal amount of Notes at a redemption price equal to 109.750% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon and Additional Interest, if any, to the applicable Redemption Date, subject to the right of Holders of Notes of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date, with the net cash proceeds of one or more Equity Offerings; provided that at least 65% of the original aggregate principal amount of Notes issued under this Indenture remains outstanding immediately after the occurrence of each such redemption; provided further that each such redemption occurs within 90 days of the date of closing of each such Equity Offering. Notice of any redemption upon any Equity Offering may be given prior to the redemption thereof, and any such redemption or notice may, at the Issuers discretion, be subject to one or more conditions precedent, including, but not limited to, completion of the related Equity Offering.
Notice of any redemption upon any Equity Offering may be given prior to the redemption thereof, and any such redemption or notice may, at the Issuers discretion, be subject to one or more conditions precedent, including, but not limited to, completion of the related Equity Offering.
(c) On and after December 15, 2013, the Issuer may redeem the Notes, in whole or in part, upon not less than 30 nor more than 60 days prior notice by first-class mail, postage prepaid, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register, at the redemption prices (expressed as percentages of principal amount of the Notes to be redeemed) set forth below, plus accrued and unpaid interest thereon and Additional Interest, if any, to the applicable Redemption Date, subject to the right of Holders of Notes of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date, if redeemed during the twelve-month period beginning on December 15 of each of the years indicated below:
Year |
|
Percentage |
|
2013 |
|
104.875 |
% |
2014 |
|
102.438 |
% |
2015 and thereafter |
|
100.000 |
% |
(d) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Section 3.08 Mandatory Redemption.
The Issuer shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.
Section 3.09 Offers to Repurchase by Application of Excess Proceeds.
Other than as specifically provided in this Section 3.09 or Section 4.10 hereof, any purchase pursuant to this Section 3.09 shall be made pursuant to the applicable provisions of Sections 3.01 through 3.06 hereof.
Section 4.01 Payment of Notes.
The Issuer shall pay or cause to be paid the principal of, premium, if any, Additional Interest, if any, and interest on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, Additional Interest, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Issuer or a Subsidiary, holds as of noon Eastern Time on the due date money deposited by the Issuer in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due.
The Issuer shall pay all Additional Interest, if any, in the same manner on the dates and in the amounts set forth in the Registration Rights Agreement.
The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest and Additional Interest (without regard to any applicable grace period) at the same rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Issuer shall maintain in the Borough of Manhattan in the City of New York an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served. The Issuer shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Issuer may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in the Borough of Manhattan in the City of New York for such purposes. The Issuer shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
The Issuer hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Issuer in accordance with Section 2.03 hereof.
Section 4.03 Reports and Other Information.
(a) Regardless of whether the Issuer remains subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise reports on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Issuer files them with the SEC) from and after the Issue Date,
(1) within 90 days (or any other time period then in effect under the rules and regulations of the Exchange Act with respect to the filing of a Form 10-K by a non-accelerated filer) after the end of each fiscal year, annual reports on Form 10-K, or any successor or comparable form, containing the information required to be contained therein, or required in such successor or comparable form;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports on Form 10-Q containing all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(3) promptly from time to time after the occurrence of an event required to be therein reported, such other reports on Form 8-K, or any successor or comparable form; and
(4) any other information, documents and other reports which the Issuer would be required to file with the SEC if it were subject to Section 13 or 15(d) of the Exchange Act;
in each case, in a manner that complies in all material respects with the requirements specified in such form; provided that the Issuer shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Issuer shall make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Issuer would be required to file such information with the SEC, if it were subject to Sections 13 or 15(d) of the Exchange Act. To the extent not satisfied by the foregoing, the Issuer shall agree that, for so long as any Notes are outstanding, it shall furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) Notwithstanding anything herein to the contrary, the Issuer shall not be deemed to have failed to comply with any of its agreements hereunder for purposes of Section 6.01(a)(3)(c) hereof until 120 days after the date any information or report hereunder is required to be furnished to Holders of Notes or filed with the SEC pursuant to this covenant.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustees receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuers compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
Section 4.04 Compliance Certificate.
Section 4.05 Taxes.
The Issuer shall pay, and shall cause each of its Restricted Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good faith and by appropriate negotiations or proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes.
Section 4.06 Stay, Extension and Usury Laws.
The Issuer and each of the Guarantors covenant (to the extent that they may lawfully do so) that they shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Issuer and each of the Guarantors (to the extent that they may lawfully do so) hereby expressly waive all benefit or advantage of any such law, and covenant that they shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.
Section 4.07 Limitation on Restricted Payments.
(I) declare or pay any dividend or make any payment or distribution on account of the Issuers or any of its Restricted Subsidiaries Equity Interests, including any dividend or distribution payable in connection with any merger or consolidation, other than:
(A) dividends, payments or distributions by the Issuer payable solely in Equity Interests (other than Disqualified Stock) of the Issuer; or
(B) dividends, payments or distributions by a Restricted Subsidiary so long as, in the case of any dividend, payment or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary that is not a Wholly Owned Subsidiary, the Issuer or a Restricted Subsidiary receives at least its pro rata share of such dividend, payment or distribution in accordance with its Equity Interests in such class or series of securities;
(II) purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of the Issuer or any direct or indirect parent of the Issuer, including in connection with any merger or consolidation;
(III) make any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value or give any irrevocable notice of redemption with respect thereto, in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Unsecured Indebtedness, other than:
(A) Indebtedness permitted under clauses (4), (5), (7), (8), (18) and (19) of Section 4.09(b) hereof;
(B) the purchase, repurchase or other acquisition of Unsecured Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of purchase, repurchase or acquisition;
(C) the giving of an irrevocable notice of redemption with respect to the transactions described in clauses (2) and (3) of Section 4.07(b) hereof; or
(D) the prepayment of obligations that are revolving in nature to the extent not accompanied by a commitment reduction; or
(IV) make any Restricted Investment
(all such payments and other actions set forth in clauses (I) through (IV) above being collectively referred to as Restricted Payments), unless, at the time of such Restricted Payment:
(1) no Default shall have occurred and be continuing or would occur as a consequence thereof;
(2) immediately after giving effect to such transaction on a pro forma basis, the Issuer could incur $1.00 of additional Indebtedness under Section 4.09(a) hereof; and
(3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Issuer and its Restricted Subsidiaries after the Issue Date (including Restricted Payments permitted by clauses (1), (7) and (9) of Section 4.07(b) hereof, but excluding all other Restricted Payments permitted by Section 4.07(b) hereof), is less than the sum of (without duplication):
(a) 50% of the Consolidated Net Income of the Issuer for the period (taken as one accounting period) beginning January 1, 2010 to the end of the Issuers most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment, or, in the case such Consolidated Net Income for such period is a deficit, minus 100% of such deficit; plus
(b) 100% of the aggregate net cash proceeds and the fair market value of marketable securities or other property received by the Issuer since immediately after the Issue Date from the sale of:
(i) Equity Interests of the Issuer, including Treasury Capital Stock, but excluding cash proceeds and the fair market value of marketable securities or other property received from the sale of Equity Interests to members of management, directors or consultants of the Issuer, any direct or indirect parent company of the Issuer and the Issuers Subsidiaries after the Issue Date to the extent such amounts have been applied to Restricted Payments made in accordance with clause (4) of Section 4.07(b) hereof; or
(ii) debt securities of the Issuer that have been converted into or exchanged for such Equity Interests of the Issuer;
provided, however, that this clause (b) shall not include the proceeds from (X) Equity Interests or convertible debt securities of the Issuer sold to a Restricted Subsidiary, as the case may be, or (Y) Disqualified Stock or debt securities that have been converted into Disqualified Stock; plus
(c) 100% of the aggregate amount of cash and the fair market value of marketable securities or other property contributed to the capital of the Issuer following the Issue Date (other than by a Restricted Subsidiary); plus
(d) 100% of the aggregate amount received in cash and the fair market value of marketable securities or other property received by means of:
(i) the sale or other disposition (other than to the Issuer or a Restricted Subsidiary) of Restricted Investments made by the Issuer or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Issuer or its Restricted Subsidiaries and repayments of loans or advances, and releases of guarantees, which constitute Restricted Investments by the Issuer or its Restricted Subsidiaries, in each case after the Issue Date; or
(ii) the sale (other than to the Issuer or a Restricted Subsidiary) of the stock of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary after the Issue Date; plus
(e) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary after the Issue Date, the fair market value of the Investment in such
Unrestricted Subsidiary (which, if the fair market value of such Investment may exceed $25.0 million, shall be set forth in writing by an Independent Financial Advisor) at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary, other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment.
(1) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof or the giving of the irrevocable redemption notice, as applicable, if at the date of declaration or notice such payment would have complied with the provisions of this Indenture;
(2) the redemption, repurchase, retirement or other acquisition of any Equity Interests (Treasury Capital Stock) or Unsecured Indebtedness of the Issuer in exchange for, or out of the proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary) of, Equity Interests of the Issuer (in each case, other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement or other acquisition shall be excluded from clause (3)(b) of Section 4.07(a) hereof;
(3) the redemption, repurchase or other acquisition or retirement of Unsecured Indebtedness of the Issuer or a Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of, new Indebtedness of the Issuer or a Guarantor, as the case may be, which is incurred in compliance with Section 4.09 hereof, so long as:
(a) the principal amount (or accreted value, if applicable) of such new Indebtedness does not exceed 105% of the principal amount of (or accreted value, if applicable), plus any accrued and unpaid interest on, the Unsecured Indebtedness being so redeemed, repurchased, acquired or retired for value, plus the amount of any reasonable premium paid (including reasonable tender premiums) and any reasonable fees and expenses incurred in connection with the issuance of such new Indebtedness;
(b) such new Indebtedness is Unsecured Indebtedness;
(c) such new Indebtedness has a final scheduled maturity date equal to or later than the final scheduled maturity date of the Unsecured Indebtedness being so redeemed, repurchased, acquired or retired; and
(d) such new Indebtedness has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Unsecured Indebtedness being so redeemed, repurchased, acquired or retired;
(4) a Restricted Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Issuer held by any future, present or former employee, director or consultant of the Issuer, any of its Subsidiaries or any of its direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement; provided, however, that the aggregate Restricted Payments made under this clause (4) do not exceed $3.0 million in any twelve-month period (with unused amounts in any twelve-month period being carried over to the succeeding
twelve-month period); provided further that such amount in any twelve-month period may be increased by an amount not to exceed:
(a) the cash proceeds from the sale of Equity Interests (other than Disqualified Stock) of the Issuer to members of management, directors or consultants of the Issuer or any of its Subsidiaries that occurs after the Issue Date, to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of clause (3) of Section 4.07(a) hereof; plus
(b) the cash proceeds of key man life insurance policies received by the Issuer or its Restricted Subsidiaries after the Issue Date; less
(c) the amount of any Restricted Payments made in any prior fiscal year pursuant to clauses (a) and (b) of this clause (4);
(5) the declaration and payment of dividends to holders of any class or series of Disqualified Stock or Preferred Stock of the Issuer or any of its Restricted Subsidiaries issued in accordance with Section 4.09 hereof to the extent such dividends are included in the definition of Fixed Charges;
(6) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(7) other Restricted Payments in an aggregate amount taken together with all other Restricted Payments made pursuant to this clause (7) not to exceed $20.0 million;
(8) any Restricted Payment used to fund the Transaction and the fees and expenses related thereto or owed to Affiliates, in each case to the extent described in the Offering Circular or permitted by Section 4.11 hereof;
(9) the repurchase, redemption or other acquisition or retirement for value of any Unsecured Indebtedness required in accordance with provisions applicable thereto similar to those described under Sections 4.10 and Section 4.14 hereof; provided that all Notes tendered by Holders in connection with a Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value;
(10) any Investment made by the exchange for, or out of the proceeds of, a capital contribution in respect of, or the substantially concurrent sale of, Capital Stock (other than Disqualified Stock) of the Issuer to the extent the net cash proceeds thereof are received by the Issuer; provided that the amount of any such net cash proceeds that are used for any such Investment shall be excluded from clause (3)(b) of Section 4.07(a) hereof; and
(11) distributions or payments of Receivables Fees.
provided, however, that at the time of, and after giving effect to, any Restricted Payment permitted under clauses (7) and (11) of this Section 4.07(b), no Default shall have occurred and be continuing or would occur as a consequence thereof.
Section 4.08 Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.
(1) (A) pay dividends or make any other distributions to the Issuer or any of the Restricted Subsidiaries on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or
(B) pay any Indebtedness owed to the Issuer or any of the Restricted Subsidiaries;
(2) make loans or advances to the Issuer or any of the Restricted Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Issuer or any of the Restricted Subsidiaries,
(1) contractual encumbrances or restrictions in effect on the Issue Date, including pursuant to the Senior Credit Facility and the related documentation;
(2) this Indenture, the Notes and the Guarantees;
(3) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature discussed in clause (3) of Section 4.08(a) hereof on the property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(5) any agreement or other instrument of a Person acquired by the Issuer or any of its Restricted Subsidiaries in existence at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired;
(6) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Issuer pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary, that impose restrictions on the assets to be sold;
(7) Secured Indebtedness otherwise permitted to be incurred pursuant to Section 4.09 hereof and Section 4.12 hereof that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be incurred subsequent to the Issue Date pursuant to the provisions of Section 4.09 hereof that impose restriction solely on Foreign Subsidiaries party thereto;
(10) customary provisions in joint venture agreements and other similar agreements relating solely to such joint venture;
(11) customary provisions contained in leases or licenses of intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(12) Indebtedness or other contractual requirements of a Receivables Subsidiary in connection with a Qualified Receivables Transaction, provided that such restrictions apply only to such Receivables Subsidiary;
(13) any instrument governing any Indebtedness or Capital Stock of any Unrestricted Subsidiary as in effect on the date, if any, that such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary; provided that such encumbrance or restriction is not applicable to any Person, or to the property or assets of any Person, other than such redesignated Restricted Subsidiary and its Subsidiaries (immediately prior to such redesignation) and their respective properties and assets;
(14) agreements governing Indebtedness permitted to be incurred under Section 4.09 hereof; provided that the Issuer determines in good faith (which determination shall be conclusive) that such encumbrances and restrictions are no more restrictive with respect to such encumbrance and other restrictions taken as a whole than those included in agreements governing Indebtedness existing on the Issue Date; and
(15) any encumbrances or restrictions of the type referred to in clauses (1), (2) and (3) of Section 4.08(a) hereof imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (14) of this Section 4.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, no more restrictive with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Section 4.09 Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock.
(1) the incurrence of Indebtedness under Credit Facilities by the Issuer or any of its Restricted Subsidiaries and the issuance and creation of letters of credit and bankers acceptances thereunder (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), up to an aggregate principal amount, taken together with any amounts outstanding to a Receivables Subsidiary in a Qualified Receivables Transaction, of $480.0 million outstanding at any one time, less the sum of all principal payments on Indebtedness outstanding under this clause (1) that are either required to be paid as a result of a sale of a Designated Business in calculating the Net Proceeds from such Asset Sale or that are otherwise paid from the Net Proceeds of a sale of a Designated Business pursuant to clause (1) of Section 4.10(b) hereof;
(2) the incurrence by the Issuer and any Guarantor of Indebtedness represented by the Notes (including any Guarantee) (other than any Additional Notes);
(3) Indebtedness of the Issuer and its Restricted Subsidiaries in existence on the Issue Date (other than Indebtedness described in clause (1) of this Section 4.09(b);
(4) Indebtedness (including Capitalized Lease Obligations), Disqualified Stock and Preferred Stock incurred by the Issuer or any of its Restricted Subsidiaries to finance the purchase, lease or improvement of property (real or personal) or equipment (other than software) that is used or useful in a Similar Business, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets (Capital Spending) in an aggregate principal amount not to exceed $5.0 million in any twelve-month period (with unused amounts in any twelve-month period being carried over to the succeeding twelve-month period) and any refinancings of Indebtedness (including Capitalized Lease Obligations), Disqualified Stock and Preferred Stock incurred by the Issuer or any of its Restricted Subsidiaries pursuant to this clause (4);
(5) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including letters of credit in respect of workers compensation claims, or other Indebtedness with respect to reimbursement type obligations regarding workers compensation claims; provided, however, that such letters of credit are not drawn;
(6) Indebtedness arising from agreements of the Issuer or its Restricted Subsidiaries providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided, however, that the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including non-cash proceeds (the fair market value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Issuer and its Restricted Subsidiaries in connection with such disposition;
(7) Indebtedness of the Issuer to a Restricted Subsidiary; provided that any such Indebtedness owing to a Restricted Subsidiary that is not a Guarantor is expressly subordinated in right of payment to the Notes; provided further that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such other Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness (except to the Issuer or another Restricted Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien) shall be deemed, in each case, to be an incurrence of such Indebtedness not permitted by this clause (7);
(8) Indebtedness of a Restricted Subsidiary to the Issuer or another Restricted Subsidiary; provided that if a Guarantor incurs such Indebtedness to a Restricted Subsidiary that is not a Guarantor, such Indebtedness is expressly subordinated in right of payment to the Guarantee of the Notes of such Guarantor; provided further that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such other Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any such Indebtedness (except to the Issuer or another Restricted Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien) shall be deemed, in each case, to be an incurrence of such Indebtedness not permitted by this clause (8);
(9) shares of Preferred Stock of a Restricted Subsidiary issued to the Issuer or another Restricted Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such other Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock (except to the Issuer or another of its Restricted Subsidiaries) shall be deemed in each case to be an issuance of such shares of Preferred Stock not permitted by this clause (9);
(10) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes) for the purpose of limiting interest rate risk, exchange rate risk or commodity pricing risk;
(11) obligations in respect of performance, bid, appeal and surety bonds and completion guarantees provided by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business;
(12) Indebtedness or Disqualified Stock of the Issuer and Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any Restricted Subsidiary not otherwise permitted hereunder in an aggregate principal amount or liquidation preference which, when aggregated with the principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding and incurred pursuant to this clause (12), does not at any one time outstanding exceed $35.0 million;
(13) the incurrence by the Issuer or any Restricted Subsidiary of the Issuer of Indebtedness, Disqualified Stock or Preferred Stock which serves to refund or refinance any Indebtedness, Disqualified Stock or Preferred Stock incurred as permitted under Section 4.09(a) hereof and clauses (2) and (3) of this Section 4.09(b), this clause (13) and clause (14) of this Section 4.09(b) or any Indebtedness, Disqualified Stock or Preferred Stock issued to so refund or refinance such Indebtedness, Disqualified Stock or Preferred Stock including additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay premiums (including reasonable tender premiums), defeasance costs and fees in connection therewith (the Refinancing Indebtedness) prior to its respective maturity; provided, however, that such Refinancing Indebtedness:
(A) has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred which is not less than the remaining Weighted Average Life to Maturity of the Indebtedness, Disqualified Stock or Preferred Stock being refunded or refinanced,
(B) to the extent such Refinancing Indebtedness refinances (i) Unsecured Indebtedness or constitutes Other Second Lien Obligations, such Refinancing Indebtedness also constitutes Unsecured Indebtedness or constitutes Other Second Lien Obligations, as the case may be, or (ii) Disqualified Stock or Preferred Stock, such Refinancing Indebtedness must be Disqualified Stock or Preferred Stock, respectively, and
(C) shall not include:
(i) Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary of the Issuer that is not a Guarantor that refinances Indebtedness, Disqualified Stock or Preferred Stock of the Issuer; or
(ii) Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary of the Issuer, that is not a Guarantor that refinances Indebtedness, Disqualified Stock or Preferred Stock of a Guarantor;
(14) Indebtedness, Disqualified Stock or Preferred Stock of (x) the Issuer or a Guarantor incurred to finance an acquisition or (y) Persons that are acquired by the Issuer or any Guarantor or merged into the Issuer or a Guarantor in accordance with the terms of this Indenture; provided that after giving pro forma effect to such acquisition or merger, either
(a) the Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof, or
(b) the Fixed Charge Coverage Ratio of the Issuer and the Restricted Subsidiaries is greater than immediately prior to such acquisition or merger;
(15) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five Business Days of its incurrence;
(16) Indebtedness of the Issuer or any of its Restricted Subsidiaries supported by a letter of credit issued pursuant to the Credit Facilities, in a principal amount not in excess of the stated amount of such letter of credit;
(17) (a) any guarantee by the Issuer or a Restricted Subsidiary of Indebtedness or other obligations of any Restricted Subsidiary so long as the incurrence of such Indebtedness incurred by such Restricted Subsidiary is permitted under the terms of this Indenture, or
(b) any guarantee by a Restricted Subsidiary of Indebtedness of the Issuer; provided that such guarantee is incurred in accordance with Section 4.15 hereof;
(18) Indebtedness of Foreign Subsidiaries if, at the time of incurrence of such Indebtedness, and after giving effect thereto, the aggregate principal amount of all Indebtedness of Foreign Subsidiaries incurred pursuant to this clause (18) and then outstanding does not exceed the greater of (x) $25.0 million and (y) an amount equal to the sum of (i) 80% of the total consolidated book value of the accounts receivable of the Foreign Subsidiaries and (ii) 60% of the consolidated book value of the inventories of the Foreign Subsidiaries;
(19) Indebtedness of the Issuer or any of its Restricted Subsidiaries consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements in each case, incurred in the ordinary course of business; and
(20) the issuance and sale of Preferred Stock (a) by a Foreign Subsidiary in lieu of the issuance of non-voting common stock if (i) the laws of the jurisdiction of incorporation of such Subsidiary precludes the issuance of non-voting common stock and (ii) the preferential rights afforded to the holders of such Preferred Stock are limited to those customarily provided for in such jurisdiction in respect of the issuance of non-voting stock, (b) by a Restricted Subsidiary which is a joint venture with a third party which is not an Affiliate of the Issuer or a Restricted Subsidiary, and (c) by a Restricted Subsidiary pursuant to obligations with respect to the issuance or sale of Preferred Stock which exist at the time such Person becomes a Restricted Subsidiary and which were not created in connection with or in contemplation of such Person becoming a Restricted Subsidiary.
(1) in the event that an item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) meets the criteria of more than one of the categories of permitted
Indebtedness, Disqualified Stock or Preferred Stock described in clauses (1) through (20) of Section 4.09(b) hereof or is entitled to be incurred pursuant to Section 4.09(a) hereof, the Issuer, in its sole discretion, shall classify or reclassify such item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) and shall only be required to include the amount and type of such Indebtedness, Disqualified Stock or Preferred Stock in one of the above clauses; provided that all Indebtedness outstanding under the Credit Facilities on the Issue Date shall at all times be deemed to be outstanding in reliance on clause (1) of Section 4.09(b) hereof; and
(2) at the time of incurrence, the Issuer shall be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described in Sections 4.09(a) and 4.09(b) hereof.
Accrual of interest, the accretion of accreted value and the payment of interest or dividends in the form of additional Indebtedness, Disqualified Stock or Preferred Stock shall not, as applicable, be deemed to be an incurrence of Indebtedness, Disqualified Stock or Preferred Stock for purposes of this Section 4.09.
For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced plus the amount of any reasonable premium (including reasonable tender premiums), defeasance costs and any reasonable fees and expenses incurred in connection with the issuance of such new Indebtedness.
The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.
Notwithstanding anything to the contrary, the Issuer shall not, and shall not permit any Guarantor to, directly or indirectly, incur any Indebtedness (including Acquired Indebtedness) that is subordinated or junior in right of payment to any Indebtedness of the Issuer or such Guarantor, as the case may be, unless such Indebtedness is expressly subordinated in right of payment to the Notes or such Guarantors Guarantee to the extent and in the same manner as such Indebtedness is subordinated to other Indebtedness of the Issuer or such Guarantor, as the case may be. For the purposes of this Indenture, Indebtedness that is unsecured is not deemed to be subordinated or junior to Secured Indebtedness merely because it is unsecured, and senior Indebtedness is not deemed to be subordinated or junior to any other senior Indebtedness merely because it has a junior priority with respect to the same collateral.
Section 4.10 Asset Sales.
(1) the Issuer or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of; and
(2) at least 75% of the consideration therefor received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities (as shown on the Issuers or such Restricted Subsidiarys most recent balance sheet or in the footnotes thereto) of the Issuer or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes, that are assumed by the transferee of any such assets and for which the Issuer and all of its Restricted Subsidiaries have been validly released by all creditors in writing,
(B) any securities received by the Issuer or such Restricted Subsidiary from such transferee that are converted by the Issuer or such Restricted Subsidiary into cash (to the extent of the cash received) within 90 days following the closing of such Asset Sale,
(C) any stock or assets of the kind referred to in clause (2) of Section 4.10(b) hereof,
(D) the fair market value of any Replacement Assets received (provided that (except as permitted by clause (4) of the definition of Permitted Investments) to the extent that the assets disposed of in such Asset Sale were Collateral, such Replacement Assets are pledged as Collateral under the Security Documents substantially simultaneously with such sale, with the Lien on such Collateral securing the Notes being of the same priority with respect to the Notes as the Lien on the assets disposed of), and
(E) any Designated Non-cash Consideration received by the Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (E) that is at that time outstanding, not to exceed 2.5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration, with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value,
shall be deemed to be cash for purposes of this provision and for no other purpose.
The 75% limitation referred to in clause (2) above shall not apply to any Asset Sale in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the subclauses (A), (B), (C), (D) and (E) is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation.
(1) to permanently reduce:
(A) First Lien Obligations and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto or to reduce receivables advances and reduce commitments in respect of a receivables facility; provided that the Issuer shall equally and ratably (based on the aggregate principal amounts (or accreted value, as applicable)) reduce Obligations under the Notes as provided under Section 3.07 hereof, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth under Section 4.10(c) hereof) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; or
(B) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Issuer or another Restricted Subsidiary; or
(2) to make (A) an Investment in any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Issuer or another of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B) capital expenditures or (C) acquisitions of other assets (other than assets classified as current assets in accordance with GAAP), in each of (A), (B) and (C), used or useful in a Similar Business, or that replace the businesses, properties and/or assets that are the subject of such Asset Sale (Replacement Assets); provided that to the extent that the assets disposed of in such Asset Sale were Collateral, such assets are pledged as Collateral under the Security Documents with the Lien on such Collateral securing the Notes being of the same priority with respect to the Notes as the Lien on the assets disposed of.
(1) in the case of Net Proceeds from Collateral, all Holders, and if required by the terms of any Other Second Lien Obligations, holders of such Other Second Lien Obligations; and
(2) in the case of any other Net Proceeds, all Holders of Notes and all holders of other Indebtedness that ranks pari passu in right of payment with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets (Pari Passu Indebtedness),
in each case, (an Asset Sale Offer), to purchase the maximum aggregate principal amount (or accreted value, as applicable) of the Notes and such Other Second Lien Obligations or Pari Passu Indebtedness, as applicable, that is a minimum amount of $2,000 and in an integral multiple of $1,000 in excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of
the principal amount thereof (or accreted value, as applicable), plus accrued and unpaid interest and Additional Interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds within 30 days after the date that Excess Proceeds exceed $25.0 million by mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee.
To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and such Other Second Lien Obligations or Pari Passu Indebtedness, as applicable, tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and Other Second Lien Obligations (in the case of Net Proceeds from Collateral) or Notes and such Pari Passu Indebtedness (in the case of any other Net Proceeds) surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such Other Second Lien Obligations or Pari Passu Indebtedness, as applicable, to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such Other Second Lien Obligations or Pari Passu Indebtedness, as applicable, tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Section 4.11 Transactions with Affiliates.
(1) such Affiliate Transaction is on terms that are not materially less favorable to the Issuer or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an arms-length basis;
(2) the Issuer delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $10.0 million, a resolution adopted by the majority of the Board of Directors of the Issuer approving such Affiliate Transaction and set forth in an Officers Certificate certifying that such Affiliate Transaction complies with clause (1) of this Section 4.11(a); and
(3) solely to the extent the Issuers Capital Stock is not then listed on either the New York Stock Exchange or the NASDAQ, the Issuer delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $25.0 million, an opinion as to the fairness of the Affiliate Transaction to the Issuer or the relevant Restricted Subsidiary from a financial point of view issued by an Independent Financial Advisor.
(1) transactions between or among the Issuer or any of its Restricted Subsidiaries;
(2) Permitted Investments and any Restricted Payments permitted by Section 4.07 hereof;
(3) the payment of reasonable and customary fees paid to, and indemnities provided on behalf of, officers, directors, employees or consultants of Issuer, any of its direct or indirect parent companies or any of its Restricted Subsidiaries;
(4) any agreement as in effect as of the Issue Date, or any amendment thereto (so long as any such amendment is not materially disadvantageous to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date);
(5) the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (5) to the extent that the terms of any such amendment or new agreement are not otherwise materially disadvantageous to the Holders when taken as a whole;
(6) the Transaction and the payment of all fees and expenses related to the Transaction, in each case as disclosed in the Offering Circular;
(7) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are fair to the Issuer and its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Issuer or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(8) the issuance of Equity Interests (other than Disqualified Stock) of the Issuer to any director, officer, employee, agent, consultant or Affiliate of the Issuer or the receipt of capital contributions by the Issuer;
(9) payments or loans (or cancellation of loans) to directors, employees or consultants of the Issuer, any of its direct or indirect parent companies or any of its Restricted Subsidiaries and employment agreements, stock option plans and other similar arrangements with
such employees or consultants which, in each case, are approved by the Issuer in good faith and payment of customary directors fees;
(10) any employment agreement, confidentiality agreement, non-competition agreement, employee benefit plan, indemnification agreement or arrangement for directors, officers, employees, agents and consultants, stock option, stock repurchase agreement, consulting agreement, severance agreement, insurance plan or any similar agreement, plan or arrangement entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;
(11) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise, pursuant to, or the funding of, employment, compensation or indemnification arrangements, stock options and stock ownership plans in the ordinary course of business to or with officers, directors, employees, agents or consultants of the Issuer and the Restricted Subsidiaries, or approved by the Board of Directors;
(12) transactions with a Person that is an Affiliate of the Issuer solely because the Issuer or a Restricted Subsidiary owns an Equity Interest in, or controls, such Person;
(13) transactions (in connection with a Qualified Receivables Transaction) between or among the Issuer and/or its Restricted Subsidiaries or transactions between a Receivables Subsidiary and any Person in which the Receivables Subsidiary has an Investment;
(14) transactions with any Person solely in its capacity as a holder of Indebtedness or Capital Stock of the Issuer or any of the Restricted Subsidiaries if such transaction provides for equal treatment of such Person and all other holders, in their capacity as holders, of the same series of such indebtedness or of the same class of such Capital Stock;
(15) transactions in which the Issuer or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (1) of Section 4.11(a) hereof; and
(16) payments to Heartland and/or its Affiliates in connection with (i) performing management services to the Issuer or any of its Restricted Subsidiaries, (ii) any acquisition permitted under this Indenture and (iii) any financial advisor, underwriter or placement services or other investment banking activities rendered to the Issuer or any of its Restricted Subsidiaries, in each case pursuant to the Heartland Advisory Agreement as in effect on the date hereof; provided that with respect to clause (ii), such payments are to be payable at the time of each such acquisition and shall not exceed the percentage of the aggregate consideration paid by the Issuer or any of its Restricted Subsidiaries for any such acquisition as specified in the Heartland Advisory Agreement.
Section 4.12 Liens.
The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur or suffer to exist (i) any Lien on any asset or property that is not Collateral of the Issuer or such Restricted Subsidiary securing Indebtedness unless the Notes are equally and ratably secured with (or on a senior basis to, in the case of obligations subordinated in right of payment to the
Notes) the obligations so secured until such time as such obligations are no longer secured by a Lien or (ii) any Lien securing any First Lien Obligation of the Issuer or any Guarantor without effectively providing that the Notes or the applicable Guarantee, as the case may be, shall be granted a second priority security interest (subject to Permitted Liens) upon the assets or property constituting the collateral for such First Lien Obligations, except as set forth under Article 12; provided, however, that if granting such second priority security interest requires the consent of a third party, the Issuer shall use commercially reasonable efforts to obtain such consent with respect to the second priority security interest for the benefit of the Trustee on behalf of the Holders of the Notes; provided, further, however, that if such third party does not consent to the granting of such second priority security interest after the use of commercially reasonable efforts, the Issuer shall not be required to provide such security interest.
Clause (i) of the preceding paragraph shall not require the Issuer or any Restricted Subsidiary of the Issuer to secure the Notes if the Lien consists of a Permitted Lien. Any Lien which is granted to secure the Notes or such Guarantee under clause (i) of the preceding paragraph (unless also granted pursuant to clause (ii) of the preceding paragraph) shall be automatically released and discharged at the same time as the release of the Lien that gave rise to the obligation to secure the Notes or such Guarantee under such clause (i).
Section 4.13 Corporate Existence.
Subject to Article 5 hereof, the Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its corporate existence, and the corporate, partnership or other existence of each of its Restricted Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Issuer or any such Restricted Subsidiary and (ii) the rights (charter and statutory), licenses and franchises of the Issuer and its Restricted Subsidiaries; provided that the Issuer shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Restricted Subsidiaries, if the Issuer in good faith shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Issuer and its Restricted Subsidiaries, taken as a whole.
Section 4.14 Offer to Repurchase Upon Change of Control.
(1) that a Change of Control Offer is being made pursuant to this Section 4.14 and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Issuer;
(2) the purchase price and the purchase date, which will be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the Change of Control Payment Date);
(3) that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on the Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled Option of Holder to Elect Purchase on the reverse of such Notes completed, to the paying agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(6) that Holders shall be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes, provided that the paying agent receives, not later than the close of business on the 30th day following the date of the Change of Control notice, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that if the Issuer is redeeming less than all of the Notes, the Holders of the remaining Notes will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to $2,000 or an integral multiple of $1,000 in excess thereof;
(8) if such notice is mailed prior to the occurrence of a Change of Control, stating the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(9) the other instructions, as determined by the Issuer, consistent with this Section 4.14, that a Holder must follow.
The notice, if mailed in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. If (a) the notice is mailed in a manner herein provided and (b) any Holder fails to receive such notice or a Holder receives such notice but it is defective, such Holders failure to receive such notice or such defect shall not affect the validity of the proceedings for the purchase of the Notes as to all other Holders that properly received such notice without defect. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.14, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.14 by virtue thereof.
In the event a Change of Control occurs at a time when the Issuer is prohibited by the terms of any First Lien Obligations from purchasing Notes, then prior to the mailing of the notice of a
Change of Control to Holders of Notes but in any event within 45 days following any Change of Control, the Issuer will (1) repay in full all Obligations, and terminate all commitments, under the Senior Credit Facility and all other First Lien Obligations, the terms of which require repayment and/or termination of commitments upon a Change of Control or offer to repay in full all Obligations, and terminate all commitments, under the Senior Credit Facility and all other such First Lien Obligations and to repay the Obligations owed to (and terminate all commitments of) each lender which has accepted such offer or (2) obtain the requisite consents under the agreements governing such First Lien Obligations to permit the repurchase of the Notes.
The Issuer shall first comply with the covenant in the immediately preceding paragraph before it shall be required to repurchase Notes pursuant to the provisions described above. The Issuers failure to comply with the covenant described in the immediately preceding paragraph (and any failure to send a notice of Change of Control as a result of the prohibition in the preceding paragraph) shall (with notice and lapse of time) constitute an Event of Default described under Section 6.01(a)(3), but shall not constitute an Event of Default described under Section 6.01(a)(1).
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officers Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
Section 4.15 Limitation on Guarantees of Indebtedness by Restricted Subsidiaries.
The Issuer shall not permit any of its Restricted Subsidiaries, other than a Guarantor, to guarantee the payment of any Indebtedness of the Issuer or any other Guarantor unless:
(1) such Restricted Subsidiary within 30 days executes and delivers a supplemental indenture to this Indenture, the form of which is attached as Exhibit D hereto, providing for a Guarantee by such Restricted Subsidiary, except if such Indebtedness is by its express terms subordinated in right of payment to the Notes or such Guarantors Guarantee, any such guarantee by such Restricted Subsidiary with respect to such Indebtedness shall be subordinated in right of payment to such Guarantee substantially to the same extent as such Indebtedness is subordinated to the Notes or such Guarantors Guarantee;
(2) such Restricted Subsidiary within 30 days executes and delivers a joinder to the applicable Security Documents or new Security Documents and take all actions necessary to perfect the liens created thereunder (to the extent required by such Security Documents), all of such liens to be junior to the liens in favor of the holders of the First Lien Obligations and to be subject to the Intercreditor Agreement; and
(3) such Restricted Subsidiary waives and shall not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against the Issuer or any other Restricted Subsidiary as a result of any payment by such Restricted Subsidiary under its Guarantee;
provided that this Section 4.15 shall not be applicable to any guarantee of any Restricted Subsidiary that existed at the time such Person became a Restricted Subsidiary and was not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary.
Section 5.01 Merger, Consolidation or Sale of All or Substantially All Assets.
(1) the Issuer is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation organized or existing under the laws of the jurisdiction of organization of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the Successor Company);
(2) the Successor Company, if other than the Issuer, expressly assumes all the obligations of the Issuer under the Notes pursuant to supplemental indentures, Security Documents or other documents or instruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period, the Successor Company would either (A) be permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first sentence of Section 4.09(a) hereof or (B) have a Fixed Charge Coverage Ratio of not less than the Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction;
(5) each Guarantor, unless it is the other party to the transactions described above, in which case Section 5.01(c)(1)(B) hereof shall apply, shall have by supplemental indenture and Security Documents confirmed that its Guarantee shall apply to such Persons obligations under this Indenture, the Notes, the Registration Rights Agreement and the Security Documents; and
(6) the Issuer shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indentures and Security Documents, if any, comply with this Indenture.
(1) any Restricted Subsidiary may consolidate with or merge into or transfer all or part of its properties and assets to the Issuer, and
(2) the Issuer may merge with an Affiliate of the Issuer solely for the purpose of reincorporating the Issuer in a State of the United States so long as the amount of Indebtedness of the Issuer and its Restricted Subsidiaries is not increased thereby.
(1) (A) such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of such Guarantor, as the case may be, or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Guarantor or such Person, as the case may be, being herein called the Successor Person);
(B) the Successor Person, if other than such Guarantor, expressly assumes all the obligations of such Guarantor under this Indenture and Security Documents and such Guarantors related Guarantee pursuant to supplemental indentures, Security Documents or other documents or instruments in form reasonably satisfactory to the Trustee;
(C) immediately after such transaction, no Default exists; and
(D) the Issuer shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indentures and Security Documents, if any, comply with this Indenture; or
(2) the transaction is made in compliance with Section 4.10 hereof.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Issuer in accordance with Section 5.01 hereof, the successor corporation formed by such consolidation or into or with which the Issuer is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, lease, conveyance or other disposition, the provisions of this Indenture referring to the Issuer shall refer instead to the successor corporation and not to the Issuer), and may exercise every right and power of the Issuer under this Indenture with the same effect as if such successor Person had been named as the Issuer herein; provided that the predecessor Issuer shall not be relieved from the obligation to pay the principal of and interest and Additional Interest, if any, on the Notes except in the case of a sale, assignment, transfer, conveyance or other disposition of all of the Issuers assets that meets the requirements of Section 5.01 hereof.
Section 6.01 Events of Default.
(1) default in payment when due and payable, upon redemption, acceleration or otherwise, of principal of or premium, if any, on the Notes;
(2) default for 30 days or more in the payment when due of interest or Additional Interest on or with respect to the Notes;
(3) (a) failure by the Issuer or any Guarantor to comply with its obligations under Section 5.01, (b) failure by the Issuer or any Restricted Subsidiary to comply with its obligations under Sections 3.09, 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14 or 4.15 hereof (in each
case other than a failure to purchase Notes that shall constitute an Event of Default under clause (1) above and other than a failure to comply with its obligations that would cause a default under clause (a)), or (c) failure by the Issuer or any Restricted Subsidiary to comply with any of its obligations, covenants or agreements (other than a default referred to in clauses (1), (2) and (a) and (b) above) contained in this Indenture, Security Documents or the Notes in the case of clause (b) for 30 days and in the case of clause (c) for 60 days, in each such case after receipt of written notice given by the Trustee or the Holders of not less 25% in principal amount of the Notes;
(4) default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness for money borrowed by the Issuer or any of its Restricted Subsidiaries or the payment of which is guaranteed by the Issuer or any of its Restricted Subsidiaries, other than Indebtedness owed to the Issuer or a Restricted Subsidiary, whether such Indebtedness or guarantee now exists or is created after the issuance of the Notes, if both:
(a) such default either results from the failure to pay any principal of such Indebtedness at its stated final maturity (after giving effect to any applicable grace periods) or relates to an obligation other than the obligation to pay principal of any such Indebtedness at its stated final maturity and results in the holder or holders of such Indebtedness causing such Indebtedness to become due prior to its stated maturity; and
(b) the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal at stated final maturity (after giving effect to any applicable grace periods), or the maturity of which has been so accelerated, aggregate $25.0 million or more at any one time outstanding;
(5) failure by the Issuer or any Significant Subsidiary (or group of Restricted Subsidiaries that taken together would constitute a Significant Subsidiary) to pay final judgments aggregating in excess of $25.0 million, which final judgments remain unpaid, undischarged and unstayed for a period of more than 60 days after such judgment becomes final, and in the event such judgment is covered by insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed;
(6) the Issuer or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:
(i) commences proceedings to be adjudicated bankrupt or insolvent;
(ii) consents to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under applicable Bankruptcy law;
(iii) consents to the appointment of a receiver, liquidator, assignee, trustee, sequestrator or other similar official of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) generally is not paying its debts as they become due;
(7) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Issuer or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, in a proceeding in which the Issuer or any such Restricted Subsidiaries, that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, is to be adjudicated bankrupt or insolvent;
(ii) appoints a receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, or for all or substantially all of the property of the Issuer or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary; or
(iii) orders the liquidation of the Issuer or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days;
(8) the Guarantee of any Significant Subsidiary (or group of Guarantors that taken together would constitute a Significant Subsidiary) shall for any reason cease to be in full force and effect or be declared null and void or any responsible officer of such Guarantor, as the case may be, denies that it has any further liability under its Guarantee or gives notice to such effect, other than by reason of the termination of this Indenture or the release of any such Guarantee in accordance with this Indenture; or
(9) (x) with respect to any Collateral having a fair market value in excess of $15.0 million, individually or in the aggregate, (a) the security interest under any Security Document, at any time, ceases to be in full force and effect for any reason other than in accordance with the terms of this Indenture, the Security Documents and the Intercreditor Agreement, or (b) any security interest created thereunder or under this Indenture is declared invalid or unenforceable by a court of competent jurisdiction or (y) the Issuer or any Guarantor asserts, in any pleading in any court of competent jurisdiction, that any security interest in any Collateral is invalid or unenforceable.
If any Event of Default (other than of a type specified in clause (6) or (7) above with respect to the Issuer) occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then total outstanding Notes may declare the principal, premium, if any, interest and any other monetary obligations on all the then outstanding Notes to be due and payable immediately. Upon the effectiveness of such declaration, such principal and interest shall be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising under clause (6) or (7) of this Section 6.01(a), all outstanding Notes shall become due and payable without further action or notice. The Trustee may withhold from the Holders notice of any continuing Default, except a Default relating to the
payment of principal, premium, if any, or interest, if it determines that withholding notice is in their interest.
(1) the Indebtedness or guarantee that is the basis for such Event of Default has been discharged; or
(2) holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default; or
(3) the default that is the basis for such Event of Default has been cured.
Section 6.02 Acceleration.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a
Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default and its consequences hereunder, except a continuing Default in the payment of the principal of, premium, if any, Additional Interest, if any, or interest on, any Note held by a non-consenting Holder (including in connection with an Asset Sale Offer or a Change of Control Offer); provided, subject to Section 6.02 hereof, that the Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
Holders of a majority in principal amount of the then total outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. The Trustee, however, may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder of a Note or that would involve the Trustee in personal liability.
Section 6.06 Limitation on Suits.
Subject to Section 6.07 hereof, no Holder of a Note may pursue any remedy with respect to this Indenture or the Notes unless:
(1) such Holder has previously given the Trustee notice that an Event of Default is continuing;
(2) Holders of at least 25% in principal amount of the total outstanding Notes have requested the Trustee to pursue the remedy;
(3) Holders of the Notes have offered the Trustee security or indemnity satisfactory to it against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days after the receipt thereof and the offer of security or indemnity; and
(5) Holders of a majority in principal amount of the total outstanding Notes have not given the Trustee a direction inconsistent with such request within such 60-day period.
A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or priority over another Holder of a Note.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal, premium, if any, and Additional Interest, if any, and interest on the Note, on or after the respective due dates expressed in the Note (including in connection with an Asset Sale Offer or a Change of Control Offer), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a)(1) or (2) hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount of principal of, premium, if any, and Additional Interest, if any, and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceedings, the Issuer, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding has been instituted.
Section 6.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07 hereof, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Issuer (or any other obligor upon the Notes including the Guarantors), its creditors or its property and shall be entitled and empowered to participate as a member in any official committee of creditors appointed in such matter and to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.13 Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order:
The Trustee may fix a record date and payment date for any payment to Holders of Notes pursuant to this Section 6.13.
Section 6.14 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.14 does not apply to a suit by the Trustee, a suit by a Holder of a Note
pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes.
Section 7.01 Duties of Trustee.
Section 7.02 Rights of Trustee.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustees Disclaimer.
The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Issuers use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuers direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default occurs and is continuing and if it is known to the Trustee, the Trustee shall mail to Holders of Notes a notice of the Default within 90 days after it occurs. Except in the case of a Default relating to the payment of principal, premium, if any, or interest on any Note, the Trustee may withhold from the Holders notice of any continuing Default if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Notes. The Trustee shall not be deemed to know of any Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is such a Default is received by the Trustee at the Corporate Trust Office of the Trustee.
Section 7.06 Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15, beginning with the May 15 following the date of this Indenture, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders of the Notes a brief report dated as of such reporting date that complies with Trust Indenture Act Section 313(a) (but if no event described in Trust Indenture Act Section 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also shall comply with Trust Indenture Act Section 313(b)(2). The Trustee shall also transmit by mail all reports as required by Trust Indenture Act Section 313(c).
A copy of each report at the time of its mailing to the Holders of Notes shall be mailed to the Issuer and filed with the SEC and each stock exchange on which the Notes are listed in accordance with Trust Indenture Act Section 313(d). The Issuer shall promptly notify the Trustee when the Notes are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
The Issuer shall pay to the Trustee from time to time such compensation for its acceptance of this Indenture and services hereunder as the parties shall agree in writing from time to time. The Trustees compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustees agents and counsel.
The Issuer and the Guarantors, jointly and severally, shall indemnify the Trustee for, and hold the Trustee harmless against, any and all loss, damage, claims, liability or expense (including attorneys fees) incurred by it in connection with the acceptance or administration of this trust and the performance of its duties hereunder (including the costs and expenses of enforcing this Indenture against the Issuer or any of the Guarantors (including this Section 7.07) or defending itself against any claim whether asserted by any Holder, the Issuer or any Guarantor, or liability in connective with the acceptance, exercise or performance of any of its powers or duties hereunder). The Trustee shall notify the Issuer promptly of any claim of which a Responsible Officer has received written notice for which it may seek indemnity. Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim and the Trustee may have separate counsel and the Issuer shall pay the fees and expenses of such counsel. The Issuer need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee as caused by the Trustees own willful misconduct or negligence.
The obligations of the Issuer under this Section 7.07 shall survive the satisfaction and discharge of this Indenture or the earlier resignation or removal of the Trustee.
To secure the payment obligations of the Issuer and the Guarantors in this Section 7.07, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(a)(6) or (7) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of Trust Indenture Act Section 313(b)(2) to the extent applicable.
Section 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustees acceptance of appointment as provided in this Section
7.08. The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuer. The Holders of a majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing. The Issuer may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuer shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee (at the Issuers expense), the Issuer or the Holders of at least 10% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10 hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuers obligations under Section 7.07 hereof shall continue for the benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or
state authorities and that has a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements of Trust Indenture Act Sections 310(a)(1), (2) and (5). The Trustee is subject to Trust Indenture Act Section 310(b).
Section 7.11 Preferential Collection of Claims Against Issuer.
The Trustee is subject to Trust Indenture Act Section 311(a), excluding any creditor relationship listed in Trust Indenture Act Section 311(b). A Trustee who has resigned or been removed shall be subject to Trust Indenture Act Section 311(a) to the extent indicated therein.
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuer may, at its option and at any time, elect to have either Section 8.02 or 8.03 hereof applied to all outstanding Notes upon compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Issuers exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with respect to all outstanding Notes and Guarantees, and with respect to this Indenture and the Security Documents, on the date the conditions set forth below are satisfied (Legal Defeasance). For this purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be outstanding only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in (a) and (b) below, and to have satisfied all its other obligations under the Notes, the Guarantees, this Indenture and the Security Documents, and shall be deemed to be permitted to cause the release of all Liens on the Collateral granted under the Security Documents (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of Notes to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due solely out of the trust created pursuant to this Indenture referred to in Section 8.04 hereof;
(b) the Issuers obligations with respect to Notes concerning issuing temporary Notes, registration of such Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust;
(c) the rights, powers, trusts, duties and immunities of the Trustee, and the Issuers obligations in connection therewith; and
(d) this Section 8.02.
Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Issuers exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from their obligations under the covenants contained in Sections 4.03, 4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14 and 4.15 hereof and clauses (4) and (5) of Section 5.01(a), Sections 5.01(c) and 5.01(d) hereof with respect to the outstanding Notes, and from the Liens on the Collateral granted under the Security Documents, on and after the date the conditions set forth in Section 8.04 hereof are satisfied (Covenant Defeasance), and the Notes shall thereafter be deemed not outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed outstanding for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, or as a result of any release of the Liens on the Collateral, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon the Issuers exercise under Section 8.01 hereof of the option applicable to this Section 8.03 hereof, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(a)(3), 6.01(a)(4), 6.01(a)(5), 6.01(a)(8) and 6.01(a)(9) hereof shall not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the Notes:
(1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest due on the Notes on the stated maturity date or on the redemption date, as the case may be, of such principal, premium, if any, or interest on such Notes and the Issuer must specify whether such Notes are being defeased to maturity or to a particular redemption date;
(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions,
(a) the Issuer has received from, or there has been published by, the United States Internal Revenue Service a ruling, or
(b) since the issuance of the Notes, there has been a change in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, subject to customary assumptions and exclusions, the Holders of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes, as applicable, as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Holders of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to such tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default (other than that resulting from borrowing funds to be applied to make such deposit and the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under the Senior Credit Facility or any other material agreement or instrument (other than this Indenture) to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound;
(6) the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that, as of the date of such opinion and subject to customary assumptions and exclusions following the deposit, the trust funds will not be subject to the effect of Section 547 of Title 11 of the United States Code;
(7) the Issuer shall have delivered to the Trustee an Officers Certificate stating that the deposit was not made by the Issuer with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuer or any Guarantor or others; and
(8) the Issuer shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the Trustee) pursuant to Section 8.04 hereof in respect of the outstanding Notes shall be
held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer or a Guarantor acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium and Additional Interest, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon the request of the Issuer any money or Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to Issuer.
Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, premium and Additional Interest, if any, or interest on any Note and remaining unclaimed for two years after such principal, and premium and Additional Interest, if any, or interest has become due and payable shall be paid to the Issuer on its request or (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note shall thereafter look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, shall thereupon cease.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars or Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuers obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided that, if the Issuer makes any payment of principal of, premium and Additional Interest, if any, or interest on any Note following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 hereof, the Issuer, any Guarantor (with respect to a Guarantee or this Indenture) and the Trustee may amend or supplement this Indenture, the Security Documents, and any Guarantee or Notes without the consent of any Holder:
(1) to cure any ambiguity, omission, mistake, defect or inconsistency;
(2) to provide for uncertificated Notes of such series in addition to or in place of certificated Notes;
(3) to comply with Section 5.01 hereof;
(4) to provide the assumption of the Issuers or any Guarantors obligations to the Holders;
(5) to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the rights under this Indenture of any such Holder;
(6) to add covenants for the benefit of the Holders or to surrender any right or power conferred upon the Issuer or any Guarantor;
(7) to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act;
(8) to evidence and provide for the acceptance and appointment (x) under this Indenture of a successor Trustee thereunder pursuant to the requirements thereof or (y) under the Security Documents of a successor Second Lien Agent thereunder pursuant to the requirements thereof;
(9) to add a Guarantor under this Indenture;
(10) to conform the text of this Indenture, the Guarantees or the Notes to any provision of the Description of Notes section of the Offering Circular to the extent that such provision in such Description of Notes section was intended to be a verbatim recitation of a provision of this Indenture, Guarantee or Notes;
Upon the request of the Issuer accompanied by a resolution of its board of directors authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Issuer and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise. Notwithstanding the foregoing, no Opinion of Counsel shall be required in connection with the addition of a Guarantor under this Indenture upon execution and delivery by such Guarantor and the Trustee of a supplemental indenture to this Indenture, the form of which is attached as Exhibit D hereto, and delivery of an Officers Certificate.
Section 9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Issuer and the Trustee may amend or supplement this Indenture, the Security Documents, any Guarantee and the Notes with the consent of the Holders of at least a majority in principal amount of the Notes (including Additional Notes, if any) then outstanding voting as a single class, other than Notes beneficially owned by the Issuer or its Affiliates (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for the Notes), and, subject to Sections 6.04 and 6.07 hereof, and any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium and Additional Interest, if any, or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture, the Security Documents, any Guarantee or the Notes may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes (including Additional Notes, if any) voting as a single class, other than Notes beneficially owned by the Issuer or its Affiliates (including consents obtained in connection with a purchase of, or tender offer or exchange offer for the Notes). Section 2.08 hereof and Section 2.09 hereof shall determine which Notes are considered to be outstanding for the purposes of this Section 9.02.
Upon the request of the Issuer accompanied by a resolution of its board of directors authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Issuer in the execution of such amended or supplemental indenture unless such amended or
supplemental indenture directly affects the Trustees own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver.
Without the consent of each affected Holder of Notes, an amendment or waiver under this Section 9.02 may not with respect to any Notes held by a non-consenting Holder:
(1) reduce the principal amount of such Notes whose Holders must consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed final maturity of any such Note or alter or waive the provisions with respect to the redemption of such Notes (other than provisions relating to Section 3.09, Section 4.10 and Section 4.14 hereof to the extent that any such amendment or waiver does not have the effect of reducing the principal of or changing the fixed final maturity of any such Note or altering or waiving the provisions with respect to the redemption of such Notes);
(3) reduce the rate of or change the time for payment of interest on any Note;
(4) waive a Default in the payment of principal of or premium, if any, or interest on the Notes, except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the Notes and a waiver of the payment default that resulted from such acceleration, or in respect of a covenant or provision contained in this Indenture or any Guarantee which cannot be amended or modified without the consent of all Holders;
(5) make any Note payable in money other than that stated therein;
(6) make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders to receive payments of principal of or premium, if any, or interest on the Notes;
(7) make any change in these amendment and waiver provisions;
(8) impair the right of any Holder to receive payment of principal of, or interest on such Holders Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holders Notes;
(9) make any change to or modify the ranking of the Notes that would adversely affect the Holders; or
In addition, any amendment to, or waiver of, the provision of the Indenture or any Security Document that has the effect of releasing all or substantially all of the Collateral will require consent of the holders of at least 75% in aggregate principal amount of the Notes then outstanding (including consents obtained in connection with a tender offer or exchange offer for the Notes).
Until the Discharge of First Lien Obligations has occurred, the holders of the First Priority Liens may change, waive, modify or vary the security documents of such holders and, pursuant to the Intercreditor Agreement, such changes will automatically apply to the Security Documents; provided that any such change, waiver, modification or variance that is prejudicial to the rights of the Second Lien Agent, the Trustee and the Holders of the Notes and does not affect the holders of the First Priority Liens in a like or similar manner shall not apply to the Security Documents without the consent of the Second Lien Agent and the Trustee (acting at the direction of the Holders of a majority of the aggregate principal amount of the Notes). Notice of such amendment, waiver or consent shall be given to the Trustee by the Issuer, but any failure to provide such notice will not affect the validity or effectiveness of any such amendment, waiver or consent.
No amendment of, or supplement or waiver to, the Indenture, the Notes or the Security Documents (other than the Intercreditor Agreement) shall be permitted to be effected which is in violation of or inconsistent with the terms of the Intercreditor Agreement. No amendment of, or supplement to, the Intercreditor Agreement shall be permitted to be effected without the consent of the First Lien Agent and the Second Lien Agent.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall be set forth in an amended or supplemental indenture that complies with the Trust Indenture Act, except to the extent described herein, as then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holders Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement, or waiver. If a record date is fixed, then, notwithstanding the preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only such Persons, shall be entitled to consent to such amendment, supplement, or waiver or to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record date unless the consent of the requisite number of Holders has been obtained.
Section 9.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Issuer may not sign an amendment, supplement or waiver until the board of directors approves it. In executing any amendment, supplement or waiver, the Trustee shall be provided with and (subject to Section 7.01 hereof) shall be fully protected in relying upon, in addition to the documents required by Section 13.04 hereof, an Officers Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture and that such amendment, supplement or waiver is the legal, valid and binding obligation of the Issuer and any Guarantors party thereto, enforceable against them in accordance with its terms, subject to customary exceptions, and complies with the provisions hereof (including Section 9.03). Notwithstanding the foregoing, no Opinion of Counsel will be required for the Trustee to execute any amendment or supplement adding a new Guarantor under this Indenture.
Section 9.07 Payment for Consent.
Neither the Issuer nor any Affiliate of the Issuer shall, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to all Holders and is paid to all Holders that so consent, waive or agree to amend in the time frame set forth in solicitation documents relating to such consent, waiver or agreement.
Section 10.01 Guarantee.
Subject to this Article 10, each of the Guarantors hereby, jointly and severally, fully guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (a) the principal of, interest, premium, if any, and Additional Interest, if any, on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other
obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.
Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys fees) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantees.
Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuers assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Guarantees, whether as a voidable preference, fraudulent transfer or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
The Guarantee issued by any Guarantor shall be a general secured senior obligation of such Guarantor and shall be pari passu in right of payment with all existing and future Indebtedness of such Guarantor that is not subordinated in right of payment to such Guarantee.
Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
Section 10.02 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of each Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Guarantee shall be entitled upon payment in full of all guaranteed obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantors pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.
Section 10.03 Execution and Delivery.
To evidence its Guarantee set forth in Section 10.01 hereof, each Guarantor hereby agrees that this Indenture shall be executed on behalf of such Guarantor by its President, one of its Vice Presidents or one of its Assistant Vice Presidents.
Each Guarantor hereby agrees that its Guarantee set forth in Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.
If an Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authenticates the Note, the Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantors.
If required by Section 4.15 hereof, the Issuer shall cause any newly created or acquired Restricted Subsidiary to comply with the provisions of Section 4.15 hereof and this Article 10, to the extent applicable.
Section 10.04 Subrogation.
Each Guarantor shall be subrogated to all rights of Holders of Notes against the Issuer in respect of any amounts paid by any Guarantor pursuant to the provisions of Section 10.01 hereof; provided that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Issuer under this Indenture or the Notes shall have been paid in full.
Section 10.05 Benefits Acknowledged.
Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Guarantee are knowingly made in contemplation of such benefits.
Section 10.06 Release of Guarantees.
A Guarantee by a Guarantor shall be automatically and unconditionally released and discharged, and no further action by such Guarantor, the Issuer or the Trustee is required for the release of such Guarantors Guarantee, upon:
(1) (A) any sale, exchange or transfer (by merger or otherwise) of the Capital Stock of such Guarantor (including any sale, exchange or transfer), after which the applicable Guarantor is no longer a Restricted Subsidiary or all or substantially all the assets of such Guarantor which sale, exchange or transfer is made in compliance with the applicable provisions of this Indenture;
(B) the release or discharge of the guarantee by such Guarantor of the Senior Credit Facility or such other guarantee that resulted in the creation of such Guarantee, except a discharge or release by or as a result of payment under such guarantee;
(C) the proper designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary; or
(D) the Issuer exercising its Legal Defeasance option in accordance with Article 8 hereof or the Issuers obligations under this Indenture being discharged in accordance with the terms of this Indenture; and
Section 11.01 Satisfaction and Discharge.
This Indenture shall be discharged and shall cease to be of further effect as to all Notes, when either:
(1) all Notes theretofore authenticated and delivered, except lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust, have been delivered to the Trustee for cancellation; or
(2) (A) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable by reason of the making of a notice of redemption or otherwise, shall become due and payable within one year or are to be called for redemption and redeemed within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer and the Issuer or any Guarantor have irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders of the Notes, cash in U.S. dollars, Government Securities, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest to pay and discharge the entire indebtedness on the Notes not theretofore delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption;
(B) no Default (other than that resulting from borrowing funds to be applied to make such deposit) with respect to this Indenture or the Notes shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under the Senior Credit Facility or any other material agreement or instrument (other than this Indenture) to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound;
(C) the Issuer has paid or caused to be paid all sums payable by it under this Indenture; and
(D) the Issuer has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be.
In addition, the Issuer must deliver an Officers Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if money shall have been deposited with the Trustee pursuant to subclause (A) of clause (2) of this Section 11.01, the provisions of Section 11.02 and Section 8.06 hereof shall survive such satisfaction and discharge.
Section 11.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium and Additional Interest, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuers and any Guarantors obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided that if the Issuer has made any payment of principal of, premium and Additional Interest, if any, or interest on any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent.
Section 12.01 Relative Rights; Intercreditor Agreement.
The security interests securing the Notes and the Guarantees will be, pursuant to the Intercreditor Agreement, second in priority to any and all security interests at any time granted to secure the First Lien Obligations and will also be subject to all other Permitted Liens. The Intercreditor Agreement defines the relative rights of holders of Second Priority Liens and holders of First Priority Liens.
Section 12.02 Security Documents.
The payment of the principal of and interest and premium, if any, on the Notes when due, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise and whether by the Issuer pursuant to the Notes or by a Guarantor pursuant to its Guarantee, and the payment and performance of all other Second Lien Obligations of the Issuer and the Guarantors are secured as provided in the Security Documents (subject to the terms of the Intercreditor Agreement) which the Issuer and the Guarantors have entered into simultaneously with the execution of this Indenture and will be secured as provided in Security Documents hereafter delivered as required or permitted by this Indenture. The Issuer and the Guarantors shall execute any and all further documents, financing statements, agreements and instruments, and take all further action that may be required under applicable law, or that the Second Lien Agent may reasonably request, in order to grant, preserve, protect and perfect the validity and priority of the security interests and Liens created or intended to be created by the Security Documents in the Collateral. In addition, from time to time, the Issuer will reasonably promptly secure the obligations under the Indenture, Security Documents and Intercreditor Agreement by pledging or creating, or causing to be pledged or created, perfected security interests and Liens with respect to the Collateral. Such security interests and Liens will be created under the Security Documents and other security agreements, mortgages, deeds of trust and other instruments and documents as may be reasonably required.
Section 12.03 Release of Collateral.
(a) The Issuer and the Guarantors are entitled to the releases of property and other assets included in the Collateral from the Liens securing the Notes under any one or more of the following circumstances:
(1) upon the Discharge of First Lien Obligations and concurrent release of all other Liens on such property or assets securing First Lien Obligations (including all commitments and letters of credit thereunder); provided, however, that if the Issuer or any Guarantor subsequently
incurs First Lien Obligations that are secured by Liens on property or assets of the Issuer or any Guarantor of the type constituting the Collateral and the related Liens are incurred in reliance on clause (28)(b) of the definition of Permitted Liens, then the Issuer and its Restricted Subsidiaries will be required to reinstitute the security arrangements with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent First Lien Obligations, will be Second Priority Liens on the Collateral securing such First Lien Obligations to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such First Lien Obligations, with the Second Priority Lien held either by the administrative agent, collateral agent or other representative for such First Lien Obligations or by a collateral agent or other representative designated by the Issuer to hold the Second Priority Liens for the benefit of the holders of the Notes and subject to an intercreditor agreement that provides the administrative agent or collateral agent substantially the same rights and powers as afforded under the Intercreditor Agreement;
(2) to enable the Issuer or the Guarantors to consummate the disposition of such property or assets to the extent not prohibited by Section 4.10 hereof;
(3) in the case of a Guarantor that is released from its Note Guarantee with respect to the Notes, the release of the property and assets of such Guarantor; or
(4) as permitted by Article 9 hereof.
(b) If an Event of Default under this Indenture exists on the date of Discharge of First Lien Obligations, the Second Priority Liens on the Collateral securing the Notes will not be released, except to the extent the Collateral or any portion thereof was disposed of in order to repay the First Lien Obligations secured by the Collateral, and thereafter the Second Lien Agent (or another designated representative acting at the direction of the holders of a majority of outstanding principal amount of the Notes and Other Second Lien Obligations) will have the right to foreclose upon the Collateral (but in such event, the Liens on the Collateral securing the Notes will be released when such Event of Default and all other Events of Default under this Indenture cease to exist).
The second priority security interests in all Collateral securing the Notes also will be released upon (i) a satisfaction and discharge of this Indenture as described under Article 11 or (ii) a legal defeasance or covenant defeasance under this Indenture as described under Article 8.
Section 12.04 Information Regarding Collateral.
(a) The Issuer will furnish to the Second Lien Agent, with respect to the Issuer or any Guarantor, prompt written notice of any change in such Persons (i) legal name, (ii) jurisdiction of organization or formation, (iii) identity or corporate structure or (iv) Organizational Identification Number. The Issuer and the Guarantors will not effect or permit any change referred to in the preceding sentence unless all filings have been made under the Uniform Commercial Code or otherwise that are required in order for the Second Lien Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral.
(b) Each year, at the time of delivery of the certificate contemplated by Section 4.04(a) hereof with respect to the preceding fiscal year, the Issuer shall deliver to the Second Lien Agent a certificate of a financial officer setting forth the information required pursuant to the schedules required
by the Security Documents or confirming that there has been no change in such information since the date of delivery of such certificate in the preceding year.
Section 12.05 After-Acquired Collateral.
If at any time the Issuer or any Guarantor creates any additional security interest upon any property or asset to secure any First Lien Obligations, it must concurrently grant a second priority security interest (subject to Permitted Liens, including the First Priority Liens) upon such property as security for the Notes and have such property or asset added to the Collateral, and thereupon all provisions of this Indenture relating to the Collateral shall be deemed to relate to such asset or property to the same extent and with the same force and effect; provided that if granting a security interest in such property or asset requires the consent of a third party, the Issuer shall use commercially reasonable efforts to obtain such consent with respect to the second priority security interest for the benefit of the Second Lien Agent on behalf of the Trustee and Holders of the Notes; provided further that if such third party does not consent to the granting of the second priority security interest after the use of such commercially reasonable efforts, the applicable entity will not be required to provide such security interest.
Section 12.06 Second Lien Agent.
Section 12.07 Authorization of Actions to Be Taken.
Section 13.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Trust Indenture Act Section 318(c), the imposed duties shall control.
Section 13.02 Notices.
Any notice or communication by the Issuer, any Guarantor or the Trustee to the others is duly given if in writing and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), fax or overnight air courier guaranteeing next day delivery, to the others address:
TriMas Corporation
39400 Woodward Avenue, Suite 130
Bloomfield Hills, Michigan 48304
Fax No.: (248) 631-5455
Attention: Chief Financial Officer
With a copy to:
Cahill Gordon & Reindel
80 Pine Street, 17th Floor
New York, New York 10005
Fax No.: (212) 269-5420
Attention: Douglas S. Horowitz, Esq.
If to the Trustee and Second Lien Agent:
The Bank of New York Mellon Trust Company, N.A.
2 North LaSalle Street
Chicago, Illinois 60606
Fax No.: (312) 827-8542
Attention: Corporate Trust Administration
The Issuer, any Guarantor or the Trustee and Second Lien Agent, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five calendar days after being deposited in the mail, postage prepaid, if mailed by first-class mail; when receipt acknowledged, if faxed; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery; provided that any notice or communication delivered to the Trustee shall be deemed effective upon actual receipt thereof.
Any notice or communication to a Holder shall be mailed by first-class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Any notice or communication shall also be so mailed to any Person described in Trust Indenture Act Section 313(c), to the extent required by the Trust Indenture Act. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
If the Issuer mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.
Section 13.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to Trust Indenture Act Section 312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Issuer, the Trustee, the Registrar and anyone else shall have the protection of Trust Indenture Act Section 312(c).
Section 13.04 Certificate and Opinion as to Conditions Precedent.
Section 13.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to Section 4.04 hereof or Trust Indenture Act Section 314(a)(4)) shall include:
(a) a statement that the Person making such certificate or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with (and, in the case of an Opinion of Counsel, may be limited to reliance on an Officers Certificate as to matters of fact); and
(d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 13.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 13.07 No Personal Liability of Directors, Officers, Employees and Stockholders.
No director, officer, employee, incorporator or stockholder, member or limited partner of the Issuer or any Guarantor or any of their parent companies shall have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Guarantees or this Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting Notes waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
Section 13.08 Governing Law.
THIS INDENTURE, THE SECURITY DOCUMENTS, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 13.09 Waiver of Jury Trial.
EACH OF THE ISSUER, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 13.10 Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
Section 13.11 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer or its Restricted Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 13.12 Successors.
All agreements of the Issuer in this Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors. All agreements of each Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section 10.06 hereof.
Section 13.13 Severability.
In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 13.14 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
Section 13.15 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
Section 13.16 Qualification of Indenture.
The Issuer and the Guarantors shall qualify this Indenture under the Trust Indenture Act in accordance with the terms and conditions of the Registration Rights Agreement and shall pay all reasonable costs and expenses (including attorneys fees and expenses for the Issuer, the Guarantors and the Trustee) incurred in connection therewith, including, but not limited to, costs and expenses of qualification of this Indenture and the Notes and printing this Indenture and the Notes. The Trustee shall be entitled to receive from the Issuer and the Guarantors any such Officers Certificates, Opinions of Counsel or other documentation as it may reasonably request in connection with any such qualification of this Indenture under the Trust Indenture Act.
[Signatures on following page]
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TRIMAS CORPORATION, |
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By: |
/s/ ROBERT J. ZALUPSKI |
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Name: |
Robert J. Zalupski |
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Title: |
Vice President Finance, Corporate Development & Treasurer |
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GUARANTORS: |
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TRIMAS COMPANY LLC |
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ARROW ENGINE COMPANY |
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CEQUENT PERFORMANCE PRODUCTS, INC. |
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CEQUENT CONSUMER PRODUCTS, INC. |
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COMPAC CORPORATION |
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DEW TECHNOLOGIES, INC. |
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HI-VOL PRODUCTS LLC |
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KEO CUTTERS, INC. |
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LAKE ERIE PRODUCTS CORPORATION |
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MONOGRAM AEROSPACE FASTENERS, INC. |
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NI INDUSTRIES, INC. |
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NORRIS CYLINDER COMPANY |
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RICHARDS MICRO-TOOL, INC. |
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RIEKE CORPORATION |
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RIEKE LEASING CO., INCORPORATED |
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RIEKE OF MEXICO, INC. |
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THE HAMMERBLOW COMPANY, LLC |
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TRIMAS INTERNATIONAL HOLDINGS LLC |
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By: |
/s/ ROBERT J. ZALUPSKI |
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Name: Robert J. Zalupski |
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Title: Vice President & Treasurer |
[Indenture]
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LAMONS GASKET COMPANY, |
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By: |
/s/ HENRY GUND |
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Name: |
Henry Gund |
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Title: |
Vice President & Treasurer |
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TOWING HOLDING LLC, |
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By: |
/s/ ROBERT J. ZALUPSKI |
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Name: |
Robert J. Zalupski |
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Title: |
Treasurer |
[Indenture]
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. |
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as Trustee and Second Lien Agent |
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By: |
/s/ BENITA A. VAUGHN |
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Name: |
Benita A. Vaughn |
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Title: |
Vice President |
Signature Page to Indenture
EXHIBIT A
[Face of Note]
[Insert the Global Note Legend, if applicable, pursuant to the provisions of the Indenture]
[Insert the Private Placement Legend, if applicable, pursuant to the provisions of the Indenture]
[Insert the Regulation S Global Note Legend, if applicable, pursuant to the provisions of the Indenture]
[Insert the OID Legend pursuant to the provisions of the Indenture]
CUSIP [ ]
ISIN [ ](1)
[[RULE 144A][REGULATION S]
GLOBAL NOTE
representing up to
$[ ]
9¾% Senior Secured Notes due 2017
No. |
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[$ ] |
TRIMAS CORPORATION
promises to pay to CEDE & CO. or registered assigns, the principal sum [set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto] [of United States Dollars] on December 15, 2017.
Interest Payment Dates: December 15 and June 15
Record Dates: December 1 and June 1
(1) Rule 144A Note CUSIP: 896215 AE0
Rule 144A Note ISIN: US896215AE06
Regulation S Note CUSIP: U89616 AC7
Regulation S Note ISIN: USU89616AC73
IN WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.
Dated: December 29, 2009 |
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TRIMAS CORPORATION |
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By: |
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Name: |
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Title: |
This is one of the Notes referred to in the within-mentioned Indenture:
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., |
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as Trustee and Second Lien Agent |
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By: |
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Authorized Signatory |
[Back of Note]
9¾% Senior Secured Notes due 2017
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. TriMas Corporation, a Delaware corporation, promises to pay interest on the principal amount of this Note at 9¾% per annum from December 29, 2009 until maturity and shall pay the Additional Interest, if any, payable pursuant to the Registration Rights Agreement referred to below. The Issuer shall pay interest and Additional Interest, if any, semi-annually in arrears on June 15 and December 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an Interest Payment Date). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that the first Interest Payment Date shall be June 15, 2010. The Issuer will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at the interest rate on the Notes; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest and Additional Interest, if any, (without regard to any applicable grace periods) from time to time on demand at the interest rate on the Notes. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.
2. METHOD OF PAYMENT. The Issuer will pay interest on the Notes and Additional Interest, if any, to the Persons who are registered Holders of Notes at the close of business on June 1 or December 1 (whether or not a Business Day), as the case may be, next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. Payment of interest and Additional Interest, if any, may be made by check mailed to the Holders at their addresses set forth in the register of Holders, provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest, premium and Additional Interest, if any, on all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Issuer or the Paying Agent. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York Mellon Trust Company, N.A., the Trustee and Second Lien Agent under the Indenture, will act as Paying Agent and Registrar. The Issuer may change any Paying Agent or Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Issuer issued the Notes under an Indenture, dated as of December 29, 2009 (the Indenture), among TriMas Corporation, the Guarantors named therein and the Trustee and Second Lien Agent. This Note is one of a duly authorized issue of notes of the Issuer designated as its 9¾% Senior Secured Notes due 2017. The Issuer shall be entitled to issue Additional Notes pursuant to Section 2.01 and 4.09 of the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (the Trust Indenture Act). The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION.
(a) At any time prior to December 15, 2013, the Issuer may redeem all or a part of the Notes, upon not less than 30 nor more than 60 days prior notice mailed by first-class mail to the registered address of each Holder of Notes, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest and Additional Interest, if any, to the date of redemption (the Redemption Date), subject to the rights of Holders of Notes on the relevant Record Date to receive interest due on the relevant Interest Payment Date.
(b) Until December 15, 2012, the Issuer may, at its option, on one or more occasions redeem up to 35% of the aggregate principal amount of Notes at a redemption price equal to 109.750% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon and Additional Interest, if any, to the applicable Redemption Date, subject to the right of Holders of Notes of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date, with the net cash proceeds of one or more Equity Offerings; provided that at least 65% of the original aggregate principal amount of Notes issued under the Indenture remains outstanding immediately after the occurrence of each such redemption; provided further that each such redemption occurs within 90 days of the date of closing of each such Equity Offering. Notice of any redemption upon any Equity Offering may be given prior to the redemption thereof, and any such redemption or notice may, at the Issuers discretion, be subject to one or more conditions precedent, including, but not limited to, completion of the related Equity Offering.
(c) On and after December 15, 2013, the Issuer may redeem the Notes, in whole or in part, upon not less than 30 nor more than 60 days prior notice by first-class mail, postage prepaid, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register, at the redemption prices (expressed as percentages of principal amount of the Notes to be redeemed) set forth below, plus accrued and unpaid interest thereon and Additional Interest, if any, to the applicable Redemption Date, subject to the right of Holders of Notes of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date, if redeemed during the twelve-month period beginning on December 15 of each of the years indicated below:
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2013 |
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104.875 |
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2014 |
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102.438 |
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2015 and thereafter |
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100.000 |
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(d) Any redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of Sections 3.01 through 3.06 of the Indenture.
6. MANDATORY REDEMPTION. The Issuer shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.
7. NOTICE OF REDEMPTION. Subject to Section 3.03 of the Indenture, notice of redemption will be mailed by first-class mail at least 30 days but not more than 60 days before the
redemption date (except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with Article 8 or Article 11 of the Indenture) to each Holder whose Notes are to be redeemed at its registered address. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000 in excess thereof, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date interest ceases to accrue on Notes or portions thereof called for redemption.
8. OFFERS TO REPURCHASE.
(a) Upon the occurrence of a Change of Control, the Issuer shall make an offer (a Change of Control Offer) to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holders Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest and Additional Interest thereon, if any, to the date of purchase (the Change of Control Payment). The Change of Control Offer shall be made in accordance with Section 4.14 of the Indenture.
(b) At any time when the aggregate amount of Excess Proceeds resulting from one or more Asset Sales exceeds $25.0 million, the Issuer shall make an offer to: (1) in the case of Net Proceeds from Collateral, all Holders, and if required by the terms of any Other Second Lien Obligations, holders of such Other Second Lien Obligations, and (2) in the case of any other Net Proceeds, all Holders of Notes and all holders of other Indebtedness that ranks pari passu in right of payment with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets (Pari Passu Indebtedness), in each case (an Asset Sale Offer), to purchase the maximum aggregate principal amount (or accreted value, as applicable) of the Notes and such Other Second Lien Obligations or Pari Passu Indebtedness, as applicable, that is a minimum amount of $2,000 and in an integral multiple of $1,000 in excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or accreted value, as applicable), plus accrued and unpaid interest and Additional Interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in the Indenture. The Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds within 30 days after the date that Excess Proceeds exceed $25.0 million by mailing the notice required pursuant to the terms of the Indenture, with a copy to the Trustee.
To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes (including any Additional Notes) and such Other Second Lien Obligations or Pari Passu Indebtedness, as applicable, tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in the Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and other Second Lien Obligations (in the case of Net Proceeds from Collateral) or Notes and such Pari Passu Indebtedness (in the case of any other Net Proceeds) surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such Other Second Lien Obligations or Pari Passu Indebtedness, as applicable, to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such Other Second Lien Obligations or Pari Passu Indebtedness, as applicable, tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Issuer prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled Option of Holder to Elect Purchase attached to the Notes.
9. RANKING AND COLLATERAL. The Notes and the Guarantees are general senior secured obligations of the Issuer and the Guarantors, respectively, and are pari passu in right of payment with all existing and future Indebtedness of the Issuer and the Guarantors that is not subordinated in right of payment to the Notes or Guarantees. The security interests securing the Notes and the Guarantees will be, pursuant to the Intercreditor Agreement, second in priority to any and all security interests at any time granted to secure the First Lien Obligations and will also be subject to all other Permitted Liens.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuer need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Issuer need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Guarantees or the Notes may be amended or supplemented as provided in the Indenture.
13. DEFAULTS AND REMEDIES. The Events of Default relating to the Notes are defined in Section 6.01 of the Indenture. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare the principal, premium, if any, interest and any other monetary obligations on all the then outstanding Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes will become due and payable immediately without further action or notice. Holders may not enforce the Indenture, the Notes or the Guarantees except as provided in the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default (except a Default relating to the payment of principal, premium, if any, Additional Interest, if any, or interest) if it determines that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default and/or its consequences under the Indenture except a continuing Default in payment of the principal of, premium, if any, Additional Interest, if any, or interest on, any of the Notes held by a non-consenting Holder. The Issuer and each Guarantor (to the extent that such Guarantor is so required under the Trust Indenture Act) is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Issuer is required within 10 days after becoming aware of any Default, to deliver to the Trustee a statement specifying such Default and what action the Issuer proposes to take with respect thereto.
14. AUTHENTICATION. This Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of the Trustee.
15. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of Notes under the Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes shall have all the rights set forth in the Registration Rights Agreement, dated as of December 29, 2009, among TriMas Corporation and the Guarantors named therein and the other parties named on the signature pages thereof (the Registration Rights Agreement), including the right to receive Additional Interest (as defined in the Registration Rights Agreement).
16. GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THE SECURITY DOCUMENTS, THE NOTES AND THE GUARANTEES.
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Issuer will furnish to any Holder upon written request and without charge a copy of the Security Documents, Indenture and/or the Registration Rights Agreement. Requests may be made to the Issuer at the following address:
39400 Woodward Avenue, Suite 130
Bloomfield Hills, Michigan 48304
Fax. No.: (248) 631-5455
Attention: General Counsel
ASSIGNMENT FORM
To assign this Note, fill in the form below: |
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(I) or (we) assign and transfer this Note to: |
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(Insert assignee legal name) |
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(Insert assignees soc. sec. or tax I.D. no.) |
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(Print or type assignees name, address and zip code) |
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and irrevocably appoint |
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to transfer this Note on the books of the Issuer. The agent may substitute another to act for him. |
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Your Signature: |
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(Sign exactly as your name appears on the face of this Note) |
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Signature Guarantee*: |
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* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.10 or 4.14 of the Indenture, check the appropriate box below:
o Section 4.10 o Section 4.14
If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to have purchased:
$
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(Sign exactly as your name appears on the face of this Note) |
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Tax Identification No.: |
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Signature Guarantee*: |
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* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial outstanding principal amount of this Global Note is $ . The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global or Definitive Note for an interest in this Global Note, have been made:
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*This schedule should be included only if the Note is issued in global form.
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
TriMas Corporation
39400 Woodward Avenue, Suite 130
Bloomfield Hills, Michigan 48304
Fax. No.: (248) 631-5455
Attention: General Counsel
The Bank of New York Mellon Trust Company, N.A.
101 Barclay Street
New York, New York 10286
Fax. No.: (212) 896-7299
Attention: Corporate Trust Administration
Re: 9¾% Senior Secured Notes due 2017
Reference is hereby made to the Indenture, dated as of December 29, 2009 (the Indenture), among TriMas Corporation, the Guarantors named therein and the Trustee and the Second Lien Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
(the Transferor) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $ in such Note[s] or interests (the Transfer), to (the Transferee), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. o CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the Securities Act), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a qualified institutional buyer within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States.
2. o CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a person in the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Indenture and the Securities Act.
3. o CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):
(a) o such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;
or
(b) o such Transfer is being effected to the Issuer or a subsidiary thereof;
or
(c) o such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act.
4. o CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) o CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(b) o CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(c) o CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
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ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) o a beneficial interest in the:
(i) o 144A Global Note (CUSIP 896215 AE0), or
(ii) o Regulation S Global Note (CUSIP U89616 AC7), or
(b) o a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) o a beneficial interest in the:
(i) o 144A Global Note (CUSIP 896215 AE0), or
(ii) o Regulation S Global Note (CUSIP U89616 AC7);
(b) o a Restricted Definitive Note; or
(c) o an Unrestricted Definitive Note, in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
TriMas Corporation
39400 Woodward Avenue, Suite 130
Bloomfield Hills, Michigan 48304
Fax No.: (248) 631-5455
Attention: General Counsel
The Bank of New York Mellon Trust Company, N.A.
101 Barclay Street
New York, New York 10286
Fax No.: (212) 896-7299
Attention: Corporate Trust Administration
Re: 9¾% Senior Secured Notes due 2017
Reference is hereby made to the Indenture, dated as of December 29, 2009 (the Indenture), among TriMas Corporation, the Guarantors named therein and the Trustee and the Second Lien Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
(the Owner) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $ in such Note[s] or interests (the Exchange). In connection with the Exchange, the Owner hereby certifies that:
1) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
a) o CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owners beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owners own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the United States Securities Act of 1933, as amended (the Securities Act), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
b) o CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owners beneficial interest in a Restricted Global
Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owners own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
c) o CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Owners Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owners own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
d) o CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owners Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owners own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
2) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
a) o CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owners beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owners own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.
b) o CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owners Restricted Definitive Note for a beneficial interest in the [CHECK ONE] o 144A Global Note o Regulation S Global Note, with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owners own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer and are dated .
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EXHIBIT D
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
Supplemental Indenture (this Supplemental Indenture), dated as of , among (the Guaranteeing Subsidiary), a subsidiary of TriMas Corporation, a Delaware Corporation (the Issuer), and The Bank of New York Mellon Trust Company, N.A., as Trustee and Second Lien Agent (the Trustee).
W I T N E S S E T H
WHEREAS, each of the Issuer and the Guarantors (as defined in the Indenture referred to below) has heretofore executed and delivered to the Trustee an indenture (the Indenture), dated as of December 29, 2009, providing for the issuance of an unlimited aggregate principal amount of 9¾% Senior Secured Notes due 2017 (the Notes);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Issuers Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the Guarantee); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
(1) Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
(2) Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees as follows:
(a) Along with all Guarantors named in the Indenture, to jointly and severally unconditionally guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that:
(i) the principal of and interest, premium and Additional Interest, if any, on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors and the Guaranteeing Subsidiary shall be jointly and severally obligated to pay the same immediately. This is a guarantee of payment and not a guarantee of collection.
(b) The obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.
(c) The following is hereby waived: diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever.
(d) This Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes, the Indenture and this Supplemental Indenture, and the Guaranteeing Subsidiary accepts all obligations of a Guarantor under the Indenture.
(e) If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantors (including the Guaranteeing Subsidiary), or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby.
(g) As between the Guaranteeing Subsidiary, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guaranteeing Subsidiary for the purpose of this Guarantee.
(h) The Guaranteeing Subsidiary shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under this Guarantee.
(i) Pursuant to Section 10.02 of the Indenture, after giving effect to all other contingent and fixed liabilities that are relevant under any applicable Bankruptcy or fraudulent conveyance laws, and after giving effect to any collections from, rights to receive contribution
from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under Article 10 of the Indenture, this new Guarantee shall be limited to the maximum amount permissible such that the obligations of such Guaranteeing Subsidiary under this Guarantee will not constitute a fraudulent transfer or conveyance.
(j) This Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuers assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes and Guarantee, whether as a voidable preference, fraudulent transfer or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Note shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(k) In case any provision of this Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(l) This Guarantee shall be a general senior secured obligation of such Guaranteeing Subsidiary, ranking pari passu with any other future Indebtedness of the Guaranteeing Subsidiary, that is not subordinated in right of payment to this Guarantee.
(m) Each payment to be made by the Guaranteeing Subsidiary in respect of this Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
(3) Execution and Delivery. The Guaranteeing Subsidiary agrees that the Guarantee shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.
(4) Merger, Consolidation or Sale of All or Substantially All Assets.
(a) Except as otherwise provided in Section 5.01(c) of the Indenture, the Guaranteeing Subsidiary may not consolidate or merge with or into or wind up into (whether or not the Issuer or Guaranteeing Subsidiary is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(i) (A) the Guaranteeing Subsidiary is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Guaranteeing Subsidiary) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation organized or existing under the laws of the jurisdiction of organization of the Guaranteeing Subsidiary, as the case may be, or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (the Guaranteeing Subsidiary or such Person, as the case may be, being herein called the Successor Person);
(B) the Successor Person, if other than the Guaranteeing Subsidiary, expressly assumes all the obligations of the Guaranteeing Subsidiary under the Indenture and the Guaranteeing Subsidiarys related Guarantee pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(C) immediately after such transaction, no Default exists; and
(D) the Issuer shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indentures, if any, comply with the Indenture; or
(ii) the transaction is made in compliance with Section 4.10 of the Indenture;
(b) Subject to certain limitations described in the Indenture, the Successor Person will succeed to, and be substituted for, the Guaranteeing Subsidiary under the Indenture and the Guaranteeing Subsidiarys Guarantee. Notwithstanding the foregoing, the Guaranteeing Subsidiary may merge into or transfer all or part of its properties and assets to another Guarantor or the Issuer.
(5) Releases.
The Guarantee of the Guaranteeing Subsidiary shall be automatically and unconditionally released and discharged, and no further action by the Guaranteeing Subsidiary, the Issuer or the Trustee is required for the release of the Guaranteeing Subsidiarys Guarantee, upon:
(1) (A) any sale, exchange or transfer (by merger or otherwise) of the Capital Stock of the Guaranteeing Subsidiary (including any sale, exchange or transfer), after which the Guaranteeing Subsidiary is no longer a Restricted Subsidiary or all or substantially all the assets of the Guaranteeing Subsidiary which sale, exchange or transfer is made in compliance with the applicable provisions of the Indenture;
(B) the release or discharge of the guarantee by the Guaranteeing Subsidiary of the Senior Credit Facilities or the guarantee which resulted in the creation of the Guarantee, except a discharge or release by or as a result of payment under such guarantee;
(C) the proper designation of the Guaranteeing Subsidiary as an Unrestricted Subsidiary; or
(D) the Issuer exercising its Legal Defeasance option or Covenant Defeasance option in accordance with Article 8 of the Indenture or the Issuers obligations under the Indenture being discharged in accordance with the terms of the Indenture; and
(6) No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Guaranteeing Subsidiary shall have any liability for any obligations of the Issuer or the Guarantors (including the Guaranteeing Subsidiary) under the Notes, any Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting the Notes waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
(7) Governing Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(8) Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
(9) Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
(10) The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary.
(11) Subrogation. The Guaranteeing Subsidiary shall be subrogated to all rights of Holders of Notes against the Issuer in respect of any amounts paid by the Guaranteeing Subsidiary pursuant to the provisions of Section 2 hereof and Section 10.01 of the Indenture; provided that, if an Event of Default has occurred and is continuing, the Guaranteeing Subsidiary shall not be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Issuer under the Indenture or the Notes shall have been paid in full.
(12) Benefits Acknowledged. The Guaranteeing Subsidiarys Guarantee is subject to the terms and conditions set forth in the Indenture. The Guaranteeing Subsidiary acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to this Guarantee are knowingly made in contemplation of such benefits.
(13) Successors. All agreements of the Guaranteeing Subsidiary in this Supplemental Indenture shall bind its Successors, except as otherwise provided in Section 2(k) hereof or elsewhere in this Supplemental Indenture. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee and Second Lien Agent |
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Exhibit 4.2
SIXTH SUPPLEMENTAL INDENTURE
SIXTH SUPPLEMENTAL INDENTURE (Sixth Supplemental Indenture), dated as of December 29, 2009, among TriMas Corporation, a Delaware corporation (the Company), the Guarantors identified on the signature pages hereto (the Guarantors) and The Bank of New York Mellon (formerly The Bank of New York), as trustee (the Trustee).
WITNESSETH:
WHEREAS, the Company, the Guarantors and the Trustee have entered into an Indenture, dated as of June 6, 2002 (the Base Indenture) as amended and supplemented by the First Supplemental Indenture, dated as of March 4, 2003 (the First Supplemental Indenture), the Second Supplemental Indenture dated as of May 9, 2003 (the Second Supplemental Indenture), the Third Supplemental Indenture dated as of August 6, 2003 (the Third Supplemental Indenture), the Fourth Supplemental Indenture dated as of February 28, 2008 (the Fourth Supplemental Indenture) and the Fifth Supplemental Indenture dated as of January 26, 2009 (the Fifth Supplemental Indenture), and together with the Base Indenture, First Supplemental Indenture, Second Supplemental Indenture, Third Supplemental Indenture and Fourth Supplemental Indenture the Original Indenture), governing the Companys 97/8% Senior Subordinated Notes due 2012 (the Notes);
WHEREAS, under Section 9.02 of the Original Indenture, the Company, the Guarantors and the Trustee may amend the Original Indenture with the consent of the Holders of at least a majority in principal amount of Notes then outstanding voting as a single class pursuant to the terms set forth therein;
WHEREAS, Holders of a majority in principal amount of Notes outstanding voting as a single class have consented to the amendments set forth herein in connection with the tender offer and consent solicitation of the Company commencing on December 14, 2009, with respect to the Notes (the Tender Offer);
WHEREAS, the Company and the Guarantors desire to enter into this Sixth Supplemental Indenture on the date set forth above for the purpose of making the amendments set forth herein, which amendments will become operative as set forth in Section 4 herein; and
WHEREAS, all other conditions and requirements necessary to make this Sixth Supplemental Indenture a valid, binding and legal instrument enforceable in accordance with its terms have been performed and fulfilled by the parties hereto, and the execution and delivery thereof have been in all respects duly authorized by the parties hereto.
NOW, THEREFORE, for and in consideration of the foregoing premises, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:
1. DEFINITIONS. For all purposes of the Original Indenture and this Sixth Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) References. The terms herein, hereof and other words of similar import refer to the Original Indenture and this Sixth Supplemental Indenture as a whole and not to any particular article, section or other subdivision; and
(b) Capitalized Terms. All capitalized terms used in this Sixth Supplemental Indenture but not defined herein shall have the meanings assigned to such terms in the Original Indenture.
2. ELIMINATION AND AMENDMENT OF CERTAIN DEFINED TERMS IN ARTICLE I OF THE ORIGINAL INDENTURE. From and as of the Operational Time (as defined in Section 4(b) of this Sixth Supplemental Indenture), any defined terms appearing in Article 1 of the Original Indenture or
elsewhere in the Original Indenture, and all references thereto, that are used solely in the sections, subsections or provisions of the Original Indenture deleted from the Original Indenture by virtue of Section 3 of this Sixth Supplemental Indenture shall be deleted in their entireties from Section 1.01 of the Original Indenture.
3. AMENDMENT OF CERTAIN PROVISIONS OF ARTICLES 3, 4, 5 AND 6 AND OTHER RELATED PROVISIONS OF THE ORIGINAL INDENTURE.
(a) Amendment of Section 3.09 of the Original Indenture. From and as of the Operational Time (as defined in Section 4(b) of this Sixth Supplemental Indenture), Section 3.09 of the Original Indenture shall be amended by deleting such section in its entirety, together with any references thereto in the Original Indenture.
(b) Amendment of Article 4 of Original Indenture. From and as of the Operational Time (as defined in Section 4(b) of this Sixth Supplemental Indenture), Article 4 of the Original Indenture shall be amended by deleting Sections 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.14, 4.15, 4.16, and 4.17 in their entireties, together with any references thereto in the Original Indenture.
(c) Amendment of Section 5.01 of Original Indenture. From and as of the Operational Time (as defined in Section 4(b) of this Sixth Supplemental Indenture), Section 5.01 of the Original Indenture shall be amended by
(i) Adding and after ; at the end of clause (2);
(ii) Deleting ; and at the end of clause (3) and substituting . therefor; and
(iii) Deleting clause (4) in its entirety.
(iv) deleting the following language: In addition, the Company shall not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. This Section 5.01 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Company and any of the Guarantors.
(d) Amendment of Article 6 of the Original Indenture. From and as of the Operational Time, Article 6 of the Original Indenture shall be amended by: (i) deleting Sections 6.01(3), (4), (5), (6), (7), (8) and (9) in their entireties, together with any references thereto in the Original Indenture; (ii) adding and after ; at the end of Section 6.01(1); and (iii) deleting ; at the end of Section 6.01(2) and substituting . therefor.
(e) Amendment of Additional Provisions of Original Indenture. From and as of the Operational Time, any and all additional provisions of the Original Indenture shall be deemed amended to reflect the intentions of the amendments provided for in this Section 3 and elsewhere herein.
4. EFFECT OF SIXTH SUPPLEMENTAL INDENTURE; OPERATION OF AMENDMENTS.
(a) Effect of Sixth Supplemental Indenture. In accordance with Section 9.04 of the Original Indenture, upon the execution of this Sixth Supplemental Indenture, the Original Indenture shall be modified in accordance herewith, and this Sixth Supplemental Indenture shall form a part of the Original Indenture for all purposes; and every Holder of the Notes heretofore authenticated and delivered under the Original Indenture shall be bound hereby. Except as modified by this Sixth Supplemental Indenture, the Original Indenture and the Notes, and the rights of the Holders of the Notes thereunder, shall remain unchanged and in full force and effect.
(b) Operation of Amendments. The provisions of this Sixth Supplemental Indenture shall not become operative until the date and time (such date and time, the Operational Time) the Company notifies (in writing) The Bank of New York Mellon Trust Company, N.A., as depositary for the Notes under the Tender Offer (the Depositary), that the Company has purchased Notes tendered and not withdrawn pursuant to the Tender Offer. In the event the Company notifies (in writing) the Depositary that it has withdrawn or terminated the Tender
Offer prior to the Operational Time, this Sixth Supplemental Indenture shall be terminated and be of no force or effect and the Original Indenture shall not be modified hereby. The Company shall promptly notify the Trustee in writing of any notice it gives to the Depositary.
5. MATTERS CONCERNING THE TRUSTEE. The Trustee accepts the trusts of the Original Indenture, as amended and supplemented by this Sixth Supplemental Indenture, and agrees to perform the same, but only upon the terms and conditions set forth in the Original Indenture, as amended and supplemented by this Sixth Supplemental Indenture, to which the parties hereto and the Holders from time to time of the Notes agree and, except as expressly set forth in the Original Indenture, as amended and supplemented by this Sixth Supplemental Indenture, shall incur no liability or responsibility in respect thereof. Without limiting the generality of the foregoing, the recitals contained herein shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness, and the Trustee makes no representation as to the validity or sufficiency of this Sixth Supplemental Indenture or any consents thereto.
6. RATIFICATION AND CONFIRMATION OF THE ORIGINAL INDENTURE. Except as expressly amended hereby, the Original Indenture is in all respects ratified and confirmed and all the terms, provisions and conditions thereof shall be and remain in full force and effect.
7. MISCELLANEOUS.
(a) Binding Effect. All agreements of the Company in this Sixth Supplemental Indenture shall be binding upon the Companys successors. All agreements of the Trustee in this Sixth Supplemental Indenture shall be binding upon its successors.
(b) Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
(c) Conflict with Trust Indenture Act of 1939. If and to the extent that any provision of this Sixth Supplemental Indenture limits, qualifies or conflicts with the duties imposed by Sections 310-317 of the Trust Indenture Act of 1939, as amended (the Trust Indenture Act), by operation of Section 318(c) of the Trust Indenture Act, the imposed duties shall control.
(d) Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
(e) Counterparts. The parties may sign any number of copies of this Sixth Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
(f) Severability. In case any provision of this Sixth Supplemental Indenture shall be determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof or of the Original Indenture shall not in any way be affected or impaired thereby.
(signature page follows)
IN WITNESS WHEREOF, the parties hereto have caused this Sixth Supplemental Indenture to be duly executed and attested, all as of the date above first written.
Dated: December 29, 2009
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COMPANY: |
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TRIMAS CORPORATION |
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By: |
/s/ ROBERT J. ZALUPSKI |
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Name: Robert J. Zalupski |
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Title: Vice President Finance, Corporate Development & Treasurer |
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TRIMAS COMPANY LLC |
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ARROW ENGINE COMPANY |
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CEQUENT PERFORMANCE PRODUCTS, INC. |
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CEQUENT CONSUMER PRODUCTS, INC. |
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COMPAC CORPORATION |
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DEW TECHNOLOGIES, INC. |
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HI-VOL PRODUCTS LLC |
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KEO CUTTERS, INC. |
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LAKE ERIE PRODUCTS CORPORATION |
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MONOGRAM AEROSPACE FASTENERS, INC. |
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NI INDUSTRIES, INC. |
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NORRIS CYLINDER COMPANY |
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RICHARDS MICRO-TOOL, INC. |
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RIEKE CORPORATION |
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RIEKE LEASING CO., INCORPORATED |
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RIEKE OF MEXICO, INC. |
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THE HAMMERBLOW COMPANY, LLC |
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TRIMAS INTERNATIONAL HOLDINGS LLC, |
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By: |
/s/ ROBERT J. ZALUPSKI |
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Name: Robert J. Zalupski |
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Title: Vice President & Treasurer |
[Supplemental Indenture]
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LAMONS GASKET COMPANY, |
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By: |
s/ HENRY GUND |
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Name: Henry Gund |
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Title: Vice President & Treasurer |
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TOWING HOLDING LLC, |
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By: |
/s/ ROBERT J. ZALUPSKI |
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Name: Robert J. Zalupski |
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Title: Treasurer |
[Supplemental Indenture]
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THE BANK OF NEW YORK MELLON |
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as Trustee |
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By: |
/s/ MARY MISELIS |
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Name: Mary Miselis |
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Title: Vice President |
Exhibit 10.1
EXHIBIT A
CREDIT AGREEMENT
dated as of June 6, 2002,
as Amended and Restated as of August 2, 2006,
as Further Amended and Restated as of December 16, 2009, and January 13, 2010,
among
TRIMAS CORPORATION,
TRIMAS COMPANY LLC,
The Subsidiary Term Borrowers Party Hereto,
The Foreign Subsidiary Borrowers Party Hereto,
The Lenders Party Hereto,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Collateral Agent
and
COMERICA BANK,
as Syndication Agent
J.P. MORGAN SECURITIES INC.,
as Lead Arranger and Bookrunner
TABLE OF CONTENTS
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Page |
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ARTICLE I |
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Definitions |
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SECTION 1.01. Defined Terms |
1 |
SECTION 1.02. Classification of Loans and Borrowings |
47 |
SECTION 1.03. Terms Generally |
47 |
SECTION 1.04. Accounting Terms; GAAP |
48 |
SECTION 1.05. Exchange Rates |
48 |
SECTION 1.06. Redenomination of Certain Foreign Currencies |
49 |
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ARTICLE II |
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The Credits |
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SECTION 2.01. Commitments; Deposit Account |
49 |
SECTION 2.02. Loans and Borrowings |
54 |
SECTION 2.03. Requests for Borrowings |
56 |
SECTION 2.04. Swingline Loans |
57 |
SECTION 2.05. Letters of Credit |
58 |
SECTION 2.06. Funding of Borrowings |
66 |
SECTION 2.07. Interest Elections |
67 |
SECTION 2.08. Termination and Reduction of Commitments |
68 |
SECTION 2.09. Repayment of Loans; Evidence of Debt |
69 |
SECTION 2.10. Amortization of Tranche B Term Loans |
71 |
SECTION 2.11. Prepayment of Loans |
73 |
SECTION 2.12. Fees |
76 |
SECTION 2.13. Interest |
78 |
SECTION 2.14. Alternate Rate of Interest |
79 |
SECTION 2.15. Increased Costs |
79 |
SECTION 2.16. Break Funding Payments |
81 |
SECTION 2.17. Taxes |
82 |
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs |
83 |
SECTION 2.19. Mitigation Obligations; Replacement of Lenders |
86 |
SECTION 2.20. Additional Reserve Costs |
87 |
SECTION 2.21. Designation of Foreign Subsidiary Borrowers |
87 |
SECTION 2.22. Foreign Subsidiary Borrower Costs |
88 |
SECTION 2.23. Increase in or Conversion of Commitments |
88 |
SECTION 2.24. Defaulting Lenders |
90 |
ARTICLE III |
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Representations and Warranties |
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SECTION 3.01. Organization; Powers |
92 |
SECTION 3.02. Authorization; Enforceability |
93 |
SECTION 3.03. Governmental Approvals; No Conflicts |
93 |
SECTION 3.04. Financial Condition; No Material Adverse Change |
93 |
SECTION 3.05. Properties |
94 |
SECTION 3.06. Litigation and Environmental Matters |
94 |
SECTION 3.07. Compliance with Laws and Agreements |
95 |
SECTION 3.08. Investment Company Status |
95 |
SECTION 3.09. Taxes |
95 |
SECTION 3.10. ERISA |
95 |
SECTION 3.11. Disclosure |
95 |
SECTION 3.12. Subsidiaries |
96 |
SECTION 3.13. Insurance |
96 |
SECTION 3.14. Labor Matters |
96 |
SECTION 3.15. Solvency |
96 |
SECTION 3.16. Senior Indebtedness |
97 |
SECTION 3.17. Security Documents |
97 |
SECTION 3.18. Federal Reserve Regulations |
98 |
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ARTICLE IV |
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Conditions |
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SECTION 4.01. [Intentionally Omitted.] |
98 |
SECTION 4.02. Each Credit Event |
98 |
SECTION 4.03. Credit Events Relating to Foreign Subsidiary Borrowers |
99 |
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ARTICLE V |
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Affirmative Covenants |
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SECTION 5.01. Financial Statements and Other Information |
100 |
SECTION 5.02. Notices of Material Events |
102 |
SECTION 5.03. Information Regarding Collateral |
102 |
SECTION 5.04. Existence; Conduct of Business; Asset Dropdown |
103 |
SECTION 5.05. Payment of Obligations |
103 |
SECTION 5.06. Maintenance of Properties |
103 |
SECTION 5.07. Insurance |
104 |
SECTION 5.08. Casualty and Condemnation |
104 |
SECTION 5.09. Books and Records; Inspection and Audit Rights |
104 |
SECTION 5.10. Compliance with Laws |
105 |
SECTION 5.11. Use of Proceeds and Letters of Credit |
105 |
SECTION 5.12. Additional Subsidiaries |
105 |
SECTION 5.13. Further Assurances |
105 |
SECTION 5.14. Interest Rate Protection |
106 |
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ARTICLE VI |
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Negative Covenants |
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SECTION 6.01. Indebtedness; Certain Equity Securities |
106 |
SECTION 6.02. Liens |
109 |
SECTION 6.03. Fundamental Changes |
111 |
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions |
112 |
SECTION 6.05. Asset Sales |
114 |
SECTION 6.06. Sale and Leaseback Transactions |
116 |
SECTION 6.07. Hedging Agreements |
116 |
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness |
116 |
SECTION 6.09. Transactions with Affiliates |
118 |
SECTION 6.10. Restrictive Agreements |
119 |
SECTION 6.11. Amendment of Material Documents |
120 |
SECTION 6.12. Interest Expense Coverage Ratio |
120 |
SECTION 6.13. Leverage Ratio |
121 |
SECTION 6.14. Capital Expenditures |
121 |
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ARTICLE VII |
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Events of Default |
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ARTICLE VIII |
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The Administrative Agent |
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ARTICLE IX |
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Collection Allocation Mechanism |
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SECTION 9.01. Implementation of CAM |
128 |
SECTION 9.02. Letters of Credit |
128 |
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ARTICLE X |
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Miscellaneous |
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SECTION 10.01. Notices |
130 |
SECTION 10.02. Waivers; Amendments |
131 |
SECTION 10.03. Expenses; Indemnity; Damage Waiver |
134 |
SECTION 10.04. Successors and Assigns |
135 |
SECTION 10.05. Survival |
139 |
SECTION 10.06. Counterparts; Integration; Effectiveness |
139 |
SECTION 10.07. Severability |
139 |
SECTION 10.08. Right of Setoff |
139 |
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process |
140 |
SECTION 10.10. WAIVER OF JURY TRIAL |
140 |
SECTION 10.11. Headings |
141 |
SECTION 10.12. Confidentiality |
141 |
SECTION 10.13. Interest Rate Limitation |
142 |
SECTION 10.14. Judgment Currency |
142 |
SECTION 10.15. Obligations Joint and Several |
143 |
SCHEDULES:(1) |
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Schedule 1.01(a) |
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Mortgaged Property |
Schedule 2.01 |
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Commitments |
Schedule 3.05 |
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Real Property |
Schedule 3.06 |
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Disclosed Matters |
Schedule 3.12 |
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Subsidiaries |
Schedule 3.13 |
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Insurance |
Schedule 3.17(d) |
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Mortgage Filing Offices |
Schedule 6.01(a)(iii) |
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Existing Indebtedness |
Schedule 6.02 |
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Existing Liens |
Schedule 6.04 |
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Existing Investments |
Schedule 6.05 |
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Asset Sales |
Schedule 6.09 |
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Existing Affiliate Transactions |
Schedule 6.10 |
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Existing Restrictions |
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EXHIBITS:(2) |
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Exhibit A |
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Form of Assignment and Acceptance |
Exhibit B |
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Form of Opinion of Parent Borrowers Counsel |
Exhibit C |
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Form of Foreign Subsidiary Borrowing Agreement |
Exhibit D |
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Form of Guarantee Agreement |
Exhibit E |
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[Intentionally Omitted] |
Exhibit F |
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Form of Indemnity, Subrogation and Contribution Agreement |
Exhibit G |
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Form of Mortgage |
Exhibit H |
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Form of Pledge Agreement |
(1) Schedules are not being restated.
(2) Exhibits are not being restated.
Exhibit I |
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Form of Security Agreement |
Exhibit J |
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Form of Subordination and Other Provisions |
Exhibit K |
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Mandatory Costs Rate |
Exhibit L |
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Description of Intercreditor Agreement |
CREDIT AGREEMENT dated as of June 6, 2002, as amended and restated as of August 2, 2006, as further amended and restated as of December 16, 2009, and January 13, 2010, among TRIMAS COMPANY LLC, TRIMAS CORPORATION, the SUBSIDIARY TERM BORROWERS party hereto, the FOREIGN SUBSIDIARY BORROWERS party hereto, the LENDERS party hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent, and COMERICA BANK, as Syndication Agent.
The parties hereto agree as follows:
ABR, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.
Acquired Assets means (a) the consolidated tangible assets acquired pursuant to a Permitted Acquisition during any fiscal year determined in accordance with GAAP (the Specified Amount), provided that if such Permitted Acquisition is not consummated during the first quarter of a fiscal year, Acquired Assets for such fiscal year shall be determined by multiplying the Specified Amount by (i) 0.75 if such Permitted Acquisition is consummated during the second quarter of such fiscal year, (ii) 0.50 if such Permitted Acquisition is consummated during the third quarter of such fiscal year and (iii) 0.25 if such Permitted Acquisition is consummated during the fourth quarter of such fiscal year and (b) with respect to any fiscal year occurring after such Permitted Acquisition, the Specified Amount.
Acquisition Lease Financing means any sale or transfer by the Parent Borrower or any Subsidiary of any property, real or personal, that is acquired pursuant to a Permitted Acquisition, in an aggregate amount, not to exceed at any time $50,000,000, after the Restatement Effective Date that is rented or leased by the Parent Borrower or such Subsidiary so long as the proceeds from such transaction consist solely of cash; provided that such amount shall increase to $75,000,000 upon completion of the IPO Repayment Event.
Adjusted LIBO Rate means, with respect to any Eurocurrency Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
Administrative Agent means JPMCB, in its capacity as administrative agent for the Lenders hereunder. With respect to Foreign Currency Borrowings, the Administrative Agent may be an Affiliate of JPMCB for purposes of administering such Borrowings, and all references herein to the term Administrative Agent shall be deemed to refer to the Administrative Agent in respect of the applicable Borrowing or to all Administrative Agents, as the context requires.
Administrative Questionnaire means an Administrative Questionnaire in a form supplied by the Administrative Agent.
Affiliate means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
Agents means, collectively, the Administrative Agent, the Collateral Agent and Comerica Bank, as syndication agent.
Alternate Base Rate means, for any day, a rate per annum equal to (a) in the case of Class A Revolving Loans, Class C Revolving Loans, Class A Tranche B Term Loans and Class A Tranche B-1 Loans, the greatest of (i) the Prime Rate in effect on such day, (ii) the Federal Funds Effective Rate in effect on such day plus ½ of 1% and (iii) the Adjusted LIBO Rate (after giving effect to the 2.00% floor referred to in the definition of LIBO Rate, for purposes of determining interest rates applicable to Class A Tranche B Loans and Class A Tranche B-1 Loans) on such day (or if such day is not a Business Day, the immediately preceding Business Day) for a deposit in dollars with a maturity of one month plus 1% and (b) in the case of Class B Revolving Loans, Class B Tranche B Term Loans and Class B Tranche B-1 Loans, the greater of (i) the Prime Rate in effect on such day and (ii) the Federal Funds Effective Rate in effect on such day plus ½ of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate, as the case may be.
Amendment and Restatement Agreement means the Amendment and Restatement Agreement dated as of December 16, 2009, among the Parent Borrower, Holdings, the Lenders party thereto and JPMCB, as Administrative Agent.
Applicable Rate means, for any day, (a) with respect to any ABR Class A Tranche B Term Loan, 3.00%, (b) with respect to any ABR Class B Tranche B Term Loan, 1.75%, (c) with respect to any Eurocurrency Class A Tranche B Term Loan or Eurocurrency Class A Tranche B-1 Loan, 4.00%, (d) with respect to any Eurocurrency Class B Tranche B Term Loan or Eurocurrency Class B Tranche B-1 Loan, 2.75%, (e) with respect to any Swingline Loan, the applicable percentage set forth below under the caption Class A ABR Spread, (f) with respect to any ABR Class A Revolving Loan, ABR Class C Revolving Loan, Eurocurrency Class A Revolving Loan, or Eurocurrency Class C Revolving Loan, the applicable percentage set forth below under the caption
Class A and Class C ABR Spread or Class A and Class C Eurocurrency Spread, as the case may be, based upon the Leverage Ratio as of the most recent determination date:
Class A Applicable Rate |
Leverage Ratio |
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Class A and |
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Class A and |
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Category 1: Greater than or equal to 3.00 to 1.00 |
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3.00 |
% |
4.00 |
% |
Category 2: Less than 3.00 to 1.00 |
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2.75 |
% |
3.75 |
% |
(g) with respect to any ABR Class B Revolving Loan or Eurocurrency Class B Revolving Loan, the applicable percentage set forth below under the caption Class B ABR Spread or Class B Eurocurrency Spread, as the case may be, based upon the Leverage Ratio as of the most recent determination date:
Class B Applicable Rate |
Leverage Ratio |
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Class B ABR |
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Class B |
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Category 1: Greater than or equal to 4.50 to 1.00 |
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1.75 |
% |
2.75 |
% |
Category 2: Less than 4.50 to 1.00 but greater than or equal to 4.00 to 1.00 |
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1.50 |
% |
2.50 |
% |
Category 3: Less than 4.00 to 1.00 |
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1.25 |
% |
2.25 |
% |
and (h) with respect to the Commitment Fees (i) 0.75% in respect of Class A Revolving Commitments and Class C Revolving Commitments and (ii) 0.50% in respect of Class B Revolving Commitments.
For purposes of the foregoing clauses (e), (f) and (g), (i) the Leverage Ratio shall be determined as of the end of each fiscal quarter of the Parent Borrowers fiscal year based upon Holdings consolidated financial statements delivered pursuant to Section 5.01(a) or (b) and (ii) each change in the Applicable Rate resulting from a change in the Leverage Ratio shall be effective during the period commencing on and including the date of delivery to the Administrative Agent of such consolidated financial statements indicating such change and ending on the date immediately preceding the effective date of the next such change; provided that the Applicable Rate shall be deemed to be in Category 1 (A) at any time that an Event of Default has occurred and is continuing or
(B) if Holdings or the Parent Borrower fails to deliver the consolidated financial statements required to be delivered by it pursuant to Section 5.01(a) or (b), during the period from the expiration of the time for delivery thereof until such consolidated financial statements are delivered.
The Applicable Rate (including the Class B Applicable Rate grid above) in respect of Class B Tranche B Term Loans, Class B Tranche B-1 Loans and Class B Revolving Loans will be decreased by 0.50% immediately after both the completion of the IPO Repayment Event and the credit ratings for the Loans are B+ (with stable outlook) or better by S&P and B1 (with stable outlook) or better by Moodys and for each day thereafter.
Approved Fund means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
Assessment Rate means, for any day, the annual assessment rate in effect on such day that is payable by a member of the Bank Insurance Fund classified as well-capitalized and within supervisory subgroup B (or a comparable successor risk classification) within the meaning of 12 C.F.R. Part 327 (or any successor provision) to the Federal Deposit Insurance Corporation for insurance by such Corporation of time deposits made in dollars at the offices of such member in the United States; provided that if, as a result of any change in any law, rule or regulation, it is no longer possible to determine the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual rate as shall be determined by the Administrative Agent to be representative of the cost of such insurance to the Lenders.
Asset Dropdown means the sale or contribution by Holdings to the Parent Borrower or any Subsidiary of all of its assets to the extent permitted by applicable law or third party contracts, except as otherwise agreed to by the Administrative Agent.
Assignment and Acceptance means an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.04), and accepted by the Administrative Agent, in the form of Exhibit A to the Existing Credit Agreement or any other form approved by the Administrative Agent.
Assumed Preferred Stock means any preferred stock or preferred equity interests of any Person that becomes a Subsidiary after the First Restatement Effective Date; provided that (a) such preferred stock or preferred equity interests exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (b) the aggregate liquidation value of all such outstanding preferred stock and preferred equity interests shall not exceed $25,000,000 (which amount shall increase to $40,000,000 upon completion of the IPO
Repayment Event) at any time outstanding, less the aggregate principal amount of Indebtedness incurred and outstanding pursuant to Section 6.01(a)(xi).
Benchmark LIBO Rate has the meaning assigned to such term in Section 2.01(a)(ii)(D).
Board means the Board of Governors of the Federal Reserve System of the United States of America.
Borrowing means (a) Loans of the same Class and Type, made, converted or continued on the same date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect, or (b) a Swingline Loan.
Borrowing Request means a request by the Parent Borrower, a Subsidiary Term Borrower or a Foreign Subsidiary Borrower, as the case may be, for a Borrowing in accordance with Section 2.03.
Business Day means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that (a) when used in connection with any Eurocurrency Loan denominated in dollars or Sterling, the term Business Day shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market and (b) when used in connection with any Revolving Loan denominated in Euro, the term Business Day shall also exclude any day on which the TARGET payment system is not open for the settlement of payment in Euro.
Calculation Date means (a) each date on which a Revolving Loan is made and (b) the last Business Day of each calendar month.
CAM shall mean the mechanism for the allocation and exchange of interests in the Credit Facilities and collections thereunder established under Article IX.
CAM Exchange shall mean the exchange of the Lenders interests provided for in Section 9.01.
CAM Exchange Date shall mean the date on which (a) any event referred to in paragraph (h) or (i) of Article VII shall occur in respect of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower or (b) an acceleration of the maturity of the Loans pursuant to Article VII shall occur.
CAM Percentage shall mean, as to each Lender, a fraction, expressed as a decimal, of which (a) the numerator shall be the aggregate Dollar Equivalent (determined on the basis of Exchange Rates prevailing on the CAM Exchange Date) of the Specified Obligations owed to such Lender and such Lenders participation in undrawn amounts of Letters of Credit immediately prior to the CAM Exchange Date and (b) the denominator shall be the aggregate Dollar Equivalent (as so determined) of the
Specified Obligations owed to all the Lenders and the aggregate undrawn amount of outstanding Letters of Credit immediately prior to such CAM Exchange Date.
Capital Expenditures means, for any period, without duplication, (a) the additions to property, plant and equipment and other capital expenditures of Holdings, the Parent Borrower and its consolidated Subsidiaries (including the Receivables Subsidiary) that are (or would be) set forth in a consolidated statement of cash flows of Holdings for such period prepared in accordance with GAAP other than (x) such additions and expenditures classified as Permitted Acquisitions and (y) such additions and expenditures made with Net Proceeds from any casualty or other insured damage or condemnation or similar awards and (b) Capital Lease Obligations incurred by Holdings, the Parent Borrower and its consolidated Subsidiaries (including the Receivables Subsidiary) during such period.
Capital Lease Obligations of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
Change in Control means (a) the acquisition by any Person other than Holdings of any direct Equity Interest in the Parent Borrower; (b) prior to the date of an IPO, any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the Restatement Effective Date) other than Heartland and its Affiliates shall beneficially own at any time, directly or indirectly (without giving effect, for avoidance of doubt, to shares owned by Heartland and its Affiliates), a greater percentage of the aggregate ordinary voting power of Holdings than the aggregate ordinary voting power of Holdings that is beneficially owned at such time, directly or indirectly (without giving effect, for avoidance of doubt, to shares owned by such Person), by Heartland and its Affiliates (treating shares over which Heartland or its Affiliates have voting authority by right of contract or otherwise as being owned by Heartland and its Affiliates), unless Heartland and its Affiliates shall have the right to designate, by right of contract or otherwise, a majority of the board of directors of Holdings; (c) on or after an IPO, the acquisition of beneficial ownership, directly or indirectly, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the Restatement Effective Date) other than Heartland and its Affiliates, of Equity Interests representing more than 25% of either the aggregate ordinary voting power represented by the issued and outstanding Equity Interests in Holdings and such Person or group beneficially owns at such time, directly or indirectly (without giving effect, for avoidance of doubt, to shares owned by Heartland and its Affiliates), a greater percentage of the aggregate ordinary voting power of Holdings than the aggregate ordinary voting power of Holdings that is beneficially owned at such time, directly or indirectly, (without giving effect, for avoidance of doubt, to shares owned by such Person), by Heartland and its Affiliates (treating shares over which
Heartland or its Affiliates have voting authority by right of contract or otherwise as being owned by Heartland and its Affiliates), unless Heartland and its Affiliates shall have the right to designate, by right of contract or otherwise, a majority of the board of directors of Holdings; (d) occupation of a majority of the seats on the board of directors of Holdings by Persons who were not nominated by Heartland and its Affiliates or approved by Heartland and its Affiliates; or (e) the occurrence of any change in control (or similar event, however denominated) with respect to Holdings or the Parent Borrower under (i) any indenture or agreement in respect of Material Indebtedness to which Holdings, the Parent Borrower or any Subsidiary is a party, including the Subordinated Debt Documents, (ii) any instrument governing any preferred stock of Holdings, the Parent Borrower or any Subsidiary having a liquidation value or redemption value in excess of $10,000,000 or (iii) the Permitted Receivables Financing.
Change in Law means (a) the adoption of any law, rule or regulation after the First Restatement Effective Date, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the First Restatement Effective Date or (c) compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or by such Lenders or the Issuing Banks holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the First Restatement Effective Date.
Class, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Class A Revolving Loans, Class B Revolving Loans, Class C Revolving Loans, Class A Tranche B Term Loans, Class B Tranche B Term Loans, Class A Tranche B-1 Loans, Class B Tranche B-1 Loans or Swingline Loans, when used in reference to any Commitment, refers to whether such Commitment is a Class A Revolving Commitment, Class B Revolving Commitment, Class C Revolving Commitment, Class A Tranche B-1 Commitment or Class B Tranche B-1 Commitment and when used in reference to any Lender, refers to whether such Lender is a Class A Revolving Lender, Class B Revolving Lender, Class C Revolving Lender, Class A Tranche B Lender, Class B Tranche B Lender, Class A Tranche B-1 Lender or Class B Tranche B-1 Lender.
Class A/C Revolving Borrowing has the meaning assigned to such term in Section 2.02(a).
Class A Foreign Currency Borrowing means a Foreign Currency Borrowing comprised of Foreign Currency Loans made by Class A Revolving Lenders.
Class A Foreign Currency Commitment means, with respect to each Class A Revolving Lender, the commitment of such Class A Revolving Lender to make Foreign Currency Loans and to acquire participations in Foreign Currency Letters of Credit, expressed as an amount representing the maximum aggregate amount of such Class A Revolving Lenders Foreign Currency Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Revolving Lender pursuant to Section 10.04. The amount of each Class A Revolving Lenders Foreign Currency Commitment as of the Restatement Effective Date or as of the date on which such Class A Revolving Lender shall have assumed its Foreign Currency Commitment is set forth on Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Class A Revolving Lender shall have assumed its Class A Foreign Currency Commitment, as applicable.
Class A Foreign Currency Exposure means, with respect to any Class A Revolving Lender at any time, the Dollar Equivalent of the sum of the outstanding principal amount of such Lenders Foreign Currency Loans and Foreign Currency LC Exposure at such time.
Class A Revolving Applicable Percentage means, at any time, with respect to any Class A Revolving Lender, the percentage of the total Class A Revolving Commitments represented by such Lenders Class A Revolving Commitment. If the Class A Revolving Commitments have terminated or expired, the Class A Revolving Applicable Percentages shall be determined based upon the Class A Revolving Commitments most recently in effect, giving effect to any assignments.
Class A Revolving Availability Period means the period from and including the Restatement Effective Date to but excluding the earlier of the Class A Revolving Commitment Termination Date and the date of termination of the Class A Revolving Commitments.
Class A Revolving Commitment means, with respect to each Class A Revolving Lender, the commitment, if any, of such Class A Revolving Lender to make Class A Revolving Loans, including Foreign Currency Loans, and to acquire participations in Revolving Letters of Credit, including Foreign Currency Letters of Credit, and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Class A Revolving Lenders Class A Revolving Exposure, including Foreign Currency Exposure, hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08, (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.04 and (c) increased or assumed pursuant to the Incremental Amendment. The amount of each Class A Revolving Lenders Class A Revolving Commitment as of the Restatement Effective Date or as of the date on which such Class A Revolving Lender shall have assumed its Class A Revolving Commitment is set forth on Schedule 2.01 or in the Assignment and Acceptance or Incremental Amendment pursuant to which such Class A Revolving Lender shall have assumed its Class A Revolving Commitment, as applicable.
Class A Revolving Commitment Termination Date means February 28, 2012; provided that if, on or prior to February 28, 2012, the Parent Borrower has repaid or refinanced the Existing Subordinated Notes in full, the Class A Revolving Commitment Termination Date shall be December 15, 2013.
Class A Revolving Exposure means, with respect to any Class A Revolving Lender at any time, the sum of the outstanding principal amount of such Class A Revolving Lenders Class A Revolving Loans and its Revolving LC Exposure and Swingline Exposure at such time.
Class A Revolving Lender means a Lender with a Class A Revolving Commitment or, if the Class A Revolving Commitments have terminated or expired, a Lender with Class A Revolving Exposure.
Class A Revolving Loan means (a) each Revolving Loan outstanding under (and as defined in) the Existing Credit Agreement as of the Restatement Effective Date that became a Class A Revolving Loan hereunder pursuant to the Amendment and Restatement Agreement and (b) a Loan made on or after the Restatement Effective Date pursuant to Section 2.01(a)(i)(A).
Class A Tranche B Lender means a Lender with an outstanding Class A Tranche B Term Loan.
Class A Tranche B Maturity Date means December 15, 2015, or if such day is not a Business Day, the first Business Day thereafter; provided that if the Existing Subordinated Notes have not been repaid or refinanced on or prior to February 28, 2012, the Class A Tranche B Maturity Date will be February 28, 2012.
Class A Tranche B Term Loan means a Tranche B Term Loan outstanding under (and as defined in) the Existing Credit Agreement as of the Restatement Effective Date that became a Class A Tranche B Term Loan hereunder pursuant to the Amendment and Restatement Agreement.
Class A Tranche B-1 Commitment means, with respect to each Class A Tranche B-1 Lender, an amount representing the maximum permitted aggregate amount of such Lenders Tranche B-1 Credit Exposure hereunder, as such amount may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.04. For the avoidance of doubt, a Lenders Class A Tranche B-1 Commitment shall be deemed unused at any time to the extent it exceeds such Lenders Tranche B-1 Credit Exposure at such time. The amount of each Class A Tranche B-1 Lenders Class A Tranche B-1 Commitment as of the Restatement Effective Date or as of the date on which such Class A Tranche B-1 Lender became a Class A Tranche B-1 Lender is set forth on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Class A Tranche B-1 Commitment, as applicable.
Class A Tranche B-1 Lender means a Lender with a Class A Tranche B-1 Commitment or, if the Class A Tranche B-1 Commitments have been reduced to zero, a Lender with a Tranche B-1 Credit Exposure attributable to a Class A Tranche B-1 Commitment.
Class A Tranche B-1 Loan means (a) a Tranche B-1 Loan made under (and as defined in) the Existing Credit Agreement that as of the Restatement Effective Date became a Class A Tranche B-1 Loan hereunder pursuant to the Amendment and Restatement Agreement or (b) a Tranche B-1 Loan made on or after the Restatement Effective Date by a Class A Tranche B-1 Lender.
Class B Foreign Currency Borrowing means a Foreign Currency Borrowing comprised of Foreign Currency Loans made by Class B Revolving Lenders.
Class B Foreign Currency Commitment means, with respect to each Class B Revolving Lender, the commitment of such Class B Revolving Lender to make Foreign Currency Loans, expressed as an amount representing the maximum aggregate amount of such Class B Revolving Lenders Foreign Currency Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to assignments by or to such Revolving Lender pursuant to Section 10.04. The amount of each Class B Revolving Lenders Foreign Currency Commitment as of the Restatement Effective Date or as of the date on which such Class B Revolving Lender shall have assumed its Foreign Currency Commitment is set forth on Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Class B Revolving Lender shall have assumed its Foreign Currency Commitment, as applicable.
Class B Foreign Currency Exposure means, with respect to any Class B Revolving Lender at any time, the Dollar Equivalent of the sum of the outstanding principal amount of such Lenders Foreign Currency Loans at such time.
Class B Revolving Applicable Percentage means, with respect to any Class B Revolving Lender, the percentage of the total Class B Revolving Commitments represented by such Lenders Class B Revolving Commitment. If the Class B Revolving Commitments have terminated or expired, the Class B Revolving Applicable Percentages shall be determined based upon the Class B Revolving Commitments most recently in effect, giving effect to any assignments.
Class B Revolving Availability Period means the period from and including the Restatement Effective Date to but excluding the earlier of the Class B Revolving Commitment Termination Date and the date of termination of the Class B Revolving Commitments.
Class B Revolving Commitment means, with respect to each Class B Revolving Lender, the commitment, if any, of such Class B Revolving Lender to make Class B Revolving Loans, including Foreign Currency Loans, expressed as an amount representing the maximum aggregate amount of such Class B Revolving Lenders Class B Revolving Exposure, including Foreign Currency Exposure, hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.04. The amount of each Class B Revolving Lenders Class B Revolving Commitment as of the Restatement Effective Date or as of the date on which
such Class B Revolving Lender shall have assumed its Class B Revolving Commitment is set forth on Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Class B Revolving Lender shall have assumed its Class B Revolving Commitment, as applicable.
Class B Revolving Commitment Termination Date means August 2, 2011.
Class B Revolving Exposure means, with respect to any Class B Revolving Lender at any time, the sum of the outstanding principal amount of such Class B Revolving Lenders Class B Revolving Loans at such time.
Class B Revolving Lender means a Lender with a Class B Revolving Commitment or, if the Class B Revolving Commitments have terminated or expired, a Lender with Class B Revolving Exposure.
Class B Revolving Loan means a Revolving Loan (a) outstanding under (and as defined in) the Existing Credit Agreement as of the Restatement Effective Date that became a Class B Revolving Facility Loan hereunder pursuant to the Amendment and Restatement Agreement and (b) made by a Class B Revolving Lender on or after the Restatement Effective Date pursuant to Section 2.01(a)(i)(B).
Class B Tranche B Lender means a Lender with an outstanding Class B Tranche B Term Loan.
Class B Tranche B Maturity Date means August 2, 2013, or if such day is not a Business Day, the first Business Day thereafter; provided that if the Existing Subordinated Notes have not been repaid or refinanced on or prior to February 28, 2012, the Class B Tranche B Maturity Date will be February 28, 2012.
Class B Tranche B Term Loan means a Tranche B Term Loan outstanding under (and as defined in) the Existing Credit Agreement as of the Restatement Effective Date that became a Class B Tranche B Term Loan hereunder pursuant to the Amendment and Restatement Agreement.
Class B Tranche B-1 Commitment means, with respect to each Class B Tranche B-1 Lender, an amount representing the maximum permitted aggregate amount of such Lenders Tranche B-1 Credit Exposure hereunder, as such amount may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.04. For the avoidance of doubt, a Lenders Class B Tranche B-1 Commitment shall be deemed unused at any time to the extent it exceeds such Lenders Tranche B-1 Credit Exposure at such time. The amount of each Class B Tranche B-1 Lenders Class B Tranche B-1 Commitment as of the Restatement Effective Date or as of the date on which such Class B Tranche B-1 Lender became a Class B Tranche B-1 Lender is set forth on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Class B Tranche B-1 Commitment, as applicable.
Class B Tranche B-1 Lender means a Lender with a Class B Tranche B-1 Commitment or, if the Class B Tranche B-1 Commitments have been reduced to zero, a Lender with a Tranche B-1 Credit Exposure attributable to a Class A Tranche B-1 Commitment.
Class B Tranche B-1 Loan means (a) a Tranche B-1 Loan made under (and as defined in) the Existing Credit Agreement that as of the Restatement Effective Date became a Class B Tranche B-1 Loan hereunder pursuant to the Amendment and Restatement Agreement or (b) a Tranche B-1 Loan made on or after the Restatement Effective Date by a Class B Tranche B-1 Lender.
Class C Amendment Effective Date means January 13, 2010.
Class C Foreign Currency Borrowing means a Foreign Currency Borrowing comprised of Foreign Currency Loans made by Class C Revolving Lenders.
Class C Foreign Currency Commitment means, with respect to each Class C Revolving Lender, the commitment of such Class C Revolving Lender to make Foreign Currency Loans, expressed as an amount representing the maximum aggregate amount of such Class C Revolving Lenders Foreign Currency Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to assignments by or to such Revolving Lender pursuant to Section 10.04. The amount of each Class C Revolving Lenders Foreign Currency Commitment (i) in the case of the initial Class C Revolving Lender as of the Class C Amendment Effective Date, is $0 or (ii) in the case of a Person that becomes a Class C Revolving Lender by assignment, as of the date on which such Class C Revolving Lender shall have assumed its Class C Foreign Currency Commitment, is set forth in the Assignment and Acceptance pursuant to which such Class C Revolving Lender shall have assumed its Class C Foreign Currency Commitment.
Class C Foreign Currency Exposure means, with respect to any Class C Revolving Lender at any time, the Dollar Equivalent of the sum of the outstanding principal amount of such Lenders Foreign Currency Loans at such time.
Class C Revolving Applicable Percentage means, at any time, with respect to any Class C Revolving Lender, the percentage of the total Class C Revolving Commitments represented by such Lenders Class C Revolving Commitment. If the Class C Revolving Commitments have terminated or expired, the Class C Revolving Applicable Percentages shall be determined based upon the Class C Revolving Commitments most recently in effect, giving effect to any assignments.
Class C Revolving Availability Period means the period from and including the Class C Amendment Effective Date to but excluding the earlier of the Class A Revolving Commitment Termination Date and the date of termination of the Class C Revolving Commitments.
Class C Revolving Commitment means, with respect to each Class C Revolving Lender, the commitment, if any, of such Class C Revolving Lender to make Class C Revolving Loans, including Foreign Currency Loans, expressed as an amount representing the maximum aggregate amount of such Class C Revolving Lenders Class C Revolving Exposure, including Foreign Currency Exposure, hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.04. The amount of each Class C Revolving Lenders Class C Revolving Commitment (i) in the case of the initial Class C Revolving Lender as of the Class C Amendment Effective Date, is $5,000,000 or (ii) in the case of a Person that becomes a Class C Revolving Lender by assignment, as of the date on which such Class C Revolving Lender shall have assumed its Class C Revolving Commitment, is set forth in the Assignment and Acceptance pursuant to which such Class C Revolving Lender shall have assumed its Class C Revolving Commitment.
Class C Revolving Exposure means, with respect to any Class C Revolving Lender at any time, the sum of the outstanding principal amount of such Class C Revolving Lenders Class C Revolving Loans.
Class C Revolving Lender means a Lender with a Class C Revolving Commitment or, if the Class C Revolving Commitments have terminated or expired, a Lender with Class C Revolving Exposure. The initial Class C Revolving Lender is Jefferies Finance LLC.
Class C Revolving Loan means a Loan made pursuant to Section 2.01(a)(i)(C).
Code means the Internal Revenue Code of 1986, as amended from time to time.
Collateral means any and all Collateral, as defined in any applicable Security Document.
Collateral Agent means JPMCB, in its capacity as collateral agent for the Lenders under the Security Documents. With respect to Foreign Currency Borrowings, the Collateral Agent may be an Affiliate of JPMCB, for purposes of administering the collateralization of such Borrowings, and all references herein to the term Collateral Agent shall be deemed to refer to the Collateral Agent in respect of the applicable Borrowing or to all Collateral Agents, as the context requires.
Collateral and Guarantee Requirement means the requirement that:
Commission means the Securities and Exchange Commission or any Governmental Authority succeeding to any or all of the functions of said Commission.
Commitment means a Class A Revolving Commitment, Class B Revolving Commitment, Class C Revolving Commitment, Class A Tranche B-1 Commitment or Class B Tranche B-1 Commitment, or any combination thereof (as the context requires).
Commitment Fee has the meaning assigned to such term in Section 2.12(a).
Commitment Increase has the meaning assigned to such term in Section 2.23(b).
Commitment Termination Date means the Class A Revolving Commitment Termination Date or the Class B Revolving Commitment Termination Date, as applicable.
Consolidated Cash Interest Expense means, for any period, the excess of (a) the sum, without duplication, of (i) the interest expense (including imputed interest expense in respect of Capital Lease Obligations) of Holdings, the Parent Borrower and the Subsidiaries (including the Receivables Subsidiary) for such period, determined on a consolidated basis in accordance with GAAP, plus (ii) any interest accrued during such period in respect of Indebtedness of Holdings, the Parent Borrower or any Subsidiary (including the Receivables Subsidiary) that is required to be capitalized rather than included in consolidated interest expense for such period in accordance with GAAP, plus (iii) any cash payments made during such period in respect of obligations referred to in clause (b)(iii) below that were amortized or accrued in a previous period, plus (iv) interest-equivalent costs associated with any Permitted Receivables Financing, whether accounted for as interest expense or loss on the sale of receivables, minus (b) the sum of, without duplication, (i) interest income of Holdings, the Parent Borrower and the Subsidiaries (including the Receivables Subsidiary) for such period, determined on a consolidated basis in accordance with GAAP, plus (ii) to the extent included in such consolidated interest expense for such period, noncash amounts attributable to amortization of financing costs paid in a previous period, plus (iii) to the extent included in such consolidated interest expense for such period, noncash amounts attributable to amortization of debt discounts or accrued interest payable in kind for such period, plus (iv) to the extent included in such consolidated interest expense for such period, all financing fees incurred in connection with the Transactions.
Consolidated EBITDA means, for any period, Consolidated Net Income for such period plus (a) without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of (i) consolidated interest expense for such
period, (ii) consolidated income tax expense for such period (including all single business tax expenses imposed by state law), (iii) all amounts attributable to depreciation and amortization for such period, (iv) any extraordinary noncash charges for such period, (v) all management fees and other fees paid during such period to Heartland and/or its Affiliates pursuant to the Heartland Management Agreement to the extent permitted by Section 6.09, (vi) interest-equivalent costs associated with any Permitted Receivables Financing for such period, whether accounted for as interest expense or loss on the sale of receivables, and all Preferred Dividends, (vii) all extraordinary losses during such period that are either noncash or relate to the retirement of Indebtedness, (viii) noncash expenses during such period resulting from the grant of Equity Interests to management and employees of Holdings, the Parent Borrower or any of the Subsidiaries, (ix) the aggregate amount of deferred financing expenses for such period, (x) all other noncash expenses or losses of Holdings, the Parent Borrower or any of the Subsidiaries for such period (excluding any such charge that constitutes an accrual of or a reserve for cash charges for any future period), (xi) any nonrecurring fees, expenses or charges realized by Holdings, the Parent Borrower or any of the Subsidiaries for such period related to any offering of Equity Interests or incurrence of Indebtedness, whether or not consummated, (xii) fees and expenses in connection with the Transactions and the Restatement Transactions, (xiii) any nonrecurring costs and expenses arising from the integration of any business acquired pursuant to any Permitted Acquisition consummated after the Restatement Effective Date not to exceed $15,000,000 in the aggregate (which amount shall increase to $10,000,000 in any fiscal year and $25,000,000 in the aggregate upon completion of the IPO Repayment Event), (xiv) any nonrecurring expenses or similar costs relating to cost savings projects, including restructuring and severance expenses, not to exceed $32,000,000 in the aggregate from and after October 1, 2009; provided that no more than $15,000,000 may be counted in any fiscal year commencing on or after January 1, 2010, (xv) [reserved], (xvi) [reserved], (xvii) EBITDA from discontinued operations, not to exceed in any fiscal year $10,000,000, (xviii) losses associated with the prepayment of leases (whether operating leases or capital leases) outstanding on the Restatement Effective Date from discontinued operations and (xix) losses or charges associated with asset sales otherwise permitted hereunder not to exceed in the aggregate $10,000,000, minus (b) without duplication and to the extent included in determining such Consolidated Net Income, (i) any extraordinary gains for such period and (ii) any gains realized from the retirement of Indebtedness after the Restatement Effective Date, all determined on a consolidated basis in accordance with GAAP. If the Parent Borrower or any Subsidiary has acquired assets to be used or useful in their continuing operations (to the extent permitted by Section 6.14) in connection with the prepayment of leases during the relevant period for determining the Senior Leverage Ratio, Consolidated EBITDA for the relevant period shall be calculated only for purposes of determining Senior Leverage Ratio after giving pro forma effect thereto, as if such acquisition of assets and related termination of leases had occurred on the first day of the relevant period for determining Consolidated EBITDA. If the Parent Borrower or any Subsidiary has made any Permitted Acquisition or any sale, transfer, lease or other disposition of assets outside of the ordinary course of business permitted by Section 6.05 during the relevant period for determining the Leverage Ratio and the Interest Expense Coverage Ratio, Consolidated EBITDA for the relevant period shall be calculated only for purposes of determining
Leverage Ratio and the Interest Expense Coverage Ratio after giving pro forma effect thereto, as if such Permitted Acquisition or sale, transfer, lease or other disposition of assets (and, in each case, any related incurrence, repayment or assumption of Indebtedness, with any new Indebtedness being deemed to be amortized over the relevant period in accordance with its terms, and assuming that any Revolving Loans borrowed in connection with such acquisition are repaid with excess cash balances when available) had occurred on the first day of the relevant period for determining Consolidated EBITDA. Any such pro forma calculations may include operating and other expense reductions and other adjustments for such period resulting from any Permitted Acquisition, or sale, transfer, lease or other disposition of assets that is being given pro forma effect to the extent that such operating and other expense reductions and other adjustments (a) would be permitted pursuant to Article XI of Regulation S-X under the Securities Act of 1933 (Regulation S-X) or (b) are reasonably consistent with the purpose of Regulation S-X as determined in good faith by the Parent Borrower in consultation with the Administration Agent.
Consolidated Net Income means, for any period, the net income or loss of Holdings, the Parent Borrower and the Subsidiaries (including the Receivables Subsidiary) for such period determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income of any Person (other than the Parent Borrower) in which any other Person (other than the Parent Borrower or any Subsidiary or any director holding qualifying shares in compliance with applicable law) owns an Equity Interest, except to the extent of the amount of dividends or other distributions actually paid to the Parent Borrower or any of the Subsidiaries during such period, and (b) the income or loss of any Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with the Parent Borrower or any Subsidiary or the date that such Persons assets are acquired by the Parent Borrower or any Subsidiary.
Control means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. Controlling and Controlled have meanings correlative thereto.
Credit Facility means a category of Commitments and extensions of credit thereunder.
Default means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
Defaulting Lender means any Class A Revolving Lender or Class C Revolving Lender, as determined by the Administrative Agent in its reasonable discretion acting in good faith, that has (a) failed to fund any portion of its Class A Revolving Loans, participations in Revolving Letters of Credit or Swingline Loans, or Class C Revolving Loans, as applicable, within three Business Days of the date required to be
funded by it hereunder, (b) notified the Parent Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under other agreements in which it commits to extend credit, (c) failed, within three Business Days after request by the applicable Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Class A Revolving Loans and participations in then outstanding Revolving Letters of Credit and Swingline Loans, or Class C Revolving Loans, as applicable, or (d) (i) become or is insolvent or has a parent company that has become or is insolvent or (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment.
Deposit means, with respect to each Lender at any time, amounts actually on deposit in the Deposit Account to the credit of such Lenders Sub-Account at such time.
Deposit Account means the TriMas 2006 Credit Agreement Deposit Account established by the Administrative Agent at JPMCB pursuant to Section 2.01(a)(ii)(A).
Deposit Return has the meaning set forth in Section 2.01(a)(ii)(D).
Disclosed Matters means the actions, suits and proceedings and the environmental matters disclosed in Schedule 3.06.
dollars or $ refers to lawful money of the United States of America.
Dollar Equivalent means, on any date of determination, (a) with respect to any amount in dollars, such amount, and (b) with respect to any amount in any Foreign Currency, the equivalent in dollars of such amount, determined by the Administrative Agent pursuant to Section 1.05(b) using the Exchange Rate with respect to such Foreign Currency at the time in effect under the provisions of such Section.
Domestic Loan Party means any Loan Party, other than the Foreign Subsidiary Borrowers.
EMU Legislation means the legislative measures of the European Union for the introduction of, changeover to or operation of the Euro in one or more member states.
Environmental Laws means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, Release or threatened Release of any Hazardous Material or to health and safety matters.
Environmental Liability means any liabilities, obligations, damages, losses, claims, actions, suits, judgments, or orders, contingent or otherwise (including any liability for damages, costs of environmental remediation, costs of administrative oversight, fines, natural resource damages, penalties or indemnities), of Holdings, the Parent Borrower or any Subsidiary (including the Receivables Subsidiary) directly or indirectly resulting from or relating to (a) compliance or non-compliance with any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) any actual or alleged exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
Equity Interests means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person or any warrants, options or other rights to acquire such interests.
ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time.
ERISA Affiliate means any trade or business (whether or not incorporated) that, together with the Parent Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
ERISA Event means (a) any reportable event, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan of an accumulated funding deficiency (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Parent Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Parent Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Parent Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Parent Borrower or any ERISA Affiliate of any notice, or
the receipt by any Multiemployer Plan from the Parent Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
Euro or means the single currency of the European Union as constituted by the Treaty on European Union and as referred to in the EMU Legislation.
Eurocurrency, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
Event of Default has the meaning assigned to such term in Article VII.
Excess Cash Flow means, for any fiscal year, the sum (without duplication) of:
Exchange Rate means on any day, with respect to any Foreign Currency, the rate at which such Foreign Currency may be exchanged into dollars, as set forth at approximately 11:00 a.m., London time, on such day on the Reuters World Currency Page for such Foreign Currency. In the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Parent Borrower, or, in the absence of such agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange operations in respect of such Foreign Currency are then being conducted, at or about 10:00 a.m., local time, on such date for the purchase of dollars for delivery two Business Days later; provided that if at the time of any such determination, for any reason, no such spot rate is being quoted, the Administrative Agent, after consultation
with the Parent Borrower, may use any reasonable method it deems appropriate to determine such rate, and such determination shall be conclusive absent manifest error.
Excluded Taxes means, with respect to the Administrative Agent, any Lender, the Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of the Parent Borrower, the Subsidiary Term Borrowers or any Foreign Subsidiary Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits Taxes imposed by the United States of America or any similar Tax imposed by any other jurisdiction described in clause (a) above and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Parent Borrower under Section 2.19(b)), (i) any United States withholding Tax that is in effect (other than as a result of a reallocation of obligations by operation of the CAM) and would apply to amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Parent Borrower with respect to any United States withholding Tax pursuant to Section 2.17(a) and (ii) any withholding Tax that is attributable to such Foreign Lenders failure to comply with Section 2.17(e).
Existing Credit Agreement means the Credit Agreement dated as of June 6, 2002, as amended and restated on August 2, 2006, by and among Holdings, the Parent Borrower, the Administrative Agent and the other parties thereto, as in effect immediately prior to the Restatement Effective Date.
Existing Subordinated Notes means the 9.875% Subordinated Notes of Holdings due 2012 in the aggregate principal amount of $437,770,000 (including the Exchange Notes issued in exchange for the initial Existing Subordinated Notes as contemplated by the registration rights agreement related thereto) and the Indebtedness represented thereby.
Federal Funds Effective Rate means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
Financial Officer means the chief financial officer, principal accounting officer, treasurer or controller of Holdings or the Parent Borrower, as applicable.
First Restatement Effective Date means August 2, 2006.
Foreign Currencies means Euro and Sterling.
Foreign Currency Administrative Agent means J.P. Morgan Europe Limited, in its capacity as foreign currency administrative agent for the Lenders hereunder.
Foreign Currency Borrowing means a Borrowing comprised of Foreign Currency Loans.
Foreign Currency Commitment means a Class A Foreign Currency Commitment, a Class B Foreign Currency Commitment or a Class C Foreign Currency Commitment.
Foreign Currency Exposure means Class A Foreign Currency Exposure, Class B Foreign Currency Exposure or Class C Foreign Currency Exposure.
Foreign Currency LC Exposure means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Foreign Currency Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements in respect of Foreign Currency Letters of Credit that have not yet been reimbursed by or on behalf of the Foreign Subsidiary Borrowers at such time. The Foreign Currency LC Exposure of any Class A Revolving Lender at any time shall be its Class A Revolving Applicable Percentage of the total Foreign Currency LC Exposure at such time.
Foreign Currency Letter of Credit means a Letter of Credit denominated in a Foreign Currency.
Foreign Currency Loan means a Revolving Loan denominated in a Foreign Currency.
Foreign Lender means any Lender that is organized under the laws of a jurisdiction other than that in which the Parent Borrower or any Foreign Subsidiary Borrower, as the case may be, is located. For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
Foreign Security Collateral and Guarantee Requirement means the requirement that:
Foreign Security Documents means any agreement or instrument entered into by any Foreign Subsidiary Borrower that is reasonably requested by the Collateral Agent providing for a Lien over the assets (including shares of other Subsidiaries) of such Foreign Subsidiary Borrower.
Foreign Subsidiary means any Subsidiary that is organized under the laws of a jurisdiction other than the United States of America or any State thereof or the District of Columbia.
Foreign Subsidiary Borrowers means any wholly owned Foreign Subsidiary of the Parent Borrower organized under the laws of England and Wales, any member nation of the European Union or any other nation in Europe reasonably acceptable to the Collateral Agent that becomes a party to this Agreement pursuant to Section 2.21.
Foreign Subsidiary Borrowing Agreement means an agreement substantially in the form of Exhibit C to the Existing Credit Agreement.
GAAP means generally accepted accounting principles in the United States of America.
Governmental Authority means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
Guarantee of or by any Person (the guarantor) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the primary obligor) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.
Guarantee Agreement means the Guarantee Agreement, substantially in the form of Exhibit D to the Existing Credit Agreement, made by Holdings, the Parent Borrower and the Subsidiary Loan Parties party thereto in favor of the Collateral Agent for the benefit of the Secured Parties.
Hazardous Materials means all explosive, radioactive, hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
Heartland means Heartland Industrial Partners, L.P., a Delaware limited partnership.
Heartland Management Agreement means the monitoring agreement dated as of the Original Effective Date between Heartland (or one or more of its Affiliates) and Holdings.
Hedging Agreement means any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement.
Holdings means TriMas Corporation, a Delaware corporation.
Increase Effective Date has the meaning assigned to such term in Section 2.23(b).
Incremental Amendment has the meaning assigned to such term in Section 2.23(c).
Indebtedness of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty and (j) all obligations, contingent or otherwise, of such Person in respect of bankers acceptances. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Persons ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. Notwithstanding anything to the contrary in this paragraph, the term Indebtedness shall not include (a) agreements providing for indemnification, purchase price adjustments or similar obligations incurred or assumed in connection with the acquisition or disposition of assets or capital stock, (b) trade payables and accrued expenses in each case arising in the ordinary course of business and (c) Deposits. For the avoidance of doubt, notwithstanding any change in GAAP after the Restatement Effective Date that would require lease obligations that would be treated as operating leases as of the Restatement Effective Date, to be classified and accounted for as Capital Lease Obligations or otherwise reflected on Holdings consolidated balance sheet, such obligations shall continue to be excluded from the definition of Indebtedness.
Indemnified Taxes means Taxes other than Excluded Taxes.
Indemnity, Subrogation and Contribution Agreement means the Indemnity, Subrogation and Contribution Agreement, substantially in the form of Exhibit F to the Existing Credit Agreement, among the Parent Borrower, the Subsidiary Loan Parties party thereto and the Collateral Agent.
Information Memorandum means the Confidential Information Memorandum dated June 2006, relating to the Parent Borrower and the Transactions.
Intercreditor Agreement means an intercreditor agreement among the Administrative Agent, the Collateral Agent, and the holders of Permitted Subordinated Notes Refinancing Indebtedness, or a trustee or agent acting on behalf of such holders, on
terms consistent with those set forth on Exhibit L hereto and otherwise reasonably satisfactory to the Administrative Agent.
Interest Election Request means a request by the Parent Borrower, a Subsidiary Term Borrower or a Foreign Subsidiary Borrower, as the case may be, to convert or continue a Revolving Loan or Term Borrowing in accordance with Section 2.07.
Interest Expense Coverage Ratio means, as of the last day of any fiscal quarter, the ratio of (a) Consolidated EBITDA to (b) the sum of (i) Consolidated Cash Interest Expense and (ii) Preferred Dividends, in each case for the period of four consecutive fiscal quarters then ended.
Interest Payment Date means (a) with respect to any ABR Loan (other than a Swingline Loan), the last day of each March, June, September and December, (b) with respect to any Eurocurrency Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest Period of more than three months duration, each day prior to the last day of such Interest Period that occurs at intervals of three months duration after the first day of such Interest Period, and (c) with respect to any Swingline Loan, the day that such Loan is required to be repaid.
Interest Period means, with respect to any Eurocurrency Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter (or nine or twelve months thereafter if, at the time of the relevant Borrowing, all Lenders participating therein agree to make an interest period of such duration available), as the Parent Borrower, a Subsidiary Term Borrower or a Foreign Subsidiary Borrower, as the case may be, may elect; provided, that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing. The amendment to the Existing Credit Agreement effected pursuant to the Amendment and Restatement Agreement shall not affect any Interest Period for any Loans outstanding on the Restatement Effective Date.
Investors means Heartland, its Affiliates, and the other entities identified by Heartland as Investors to the Administrative Agent prior to the Original Effective Date.
IPO means an underwritten public offering by Holdings of Equity Interests of Holdings pursuant to a registration statement filed with the Securities and Exchange Commission in accordance with the Securities Act of 1933.
IPO Repayment Event means repayment of principal in an aggregate minimum amount of $100,000,000 in respect of (i) Tranche B Term Loans and/or (ii) Existing Subordinated Notes, in each case contemporaneous with or subsequent to the consummation of an IPO.
Issuing Bank means JPMCB, in its capacity as the issuer of Letters of Credit hereunder, and its successors in such capacity as provided in Section 2.05(i). The Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, including with respect to Foreign Currency Letters of Credit, and in each such case the term Issuing Bank shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. In the event that there is more than one Issuing Bank at any time, references herein and in the other Loan Documents to the Issuing Bank shall be deemed to refer to the Issuing Bank in respect of the applicable Letter of Credit or to all Issuing Banks, as the context requires.
JPMCB means JPMorgan Chase Bank, N.A.
Judgment Currency has the meaning set forth in Section 10.14.
Judgment Currency Conversion Date has the meaning set forth in Section 10.14.
LC Disbursement means a payment made by the Issuing Bank pursuant to a Letter of Credit.
LC Exposure means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Parent Borrower or the Foreign Subsidiary Borrowers, as the case may be, at such time. The LC Exposure of any Lender at any time shall be the sum of its Class A Revolving Applicable Percentage of the total Revolving LC Exposure at such time plus its Tranche B-1 Applicable Percentage of the total Tranche B-1 LC Exposure at such time.
LC Reserve Account has the meaning set forth in Section 9.02(a).
Lender Affiliate means, (a) with respect to any Lender, (i) an Affiliate of such Lender or (ii) any entity (whether a corporation, partnership, trust or otherwise) that is engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course of its business and is administered or managed by a Lender or an Affiliate of such Lender and (b) with respect to any Lender that is a fund that invests in bank loans and similar extensions of credit, any other fund that invests in bank loans and similar extensions of credit and is managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
Lenders means the Persons listed on Schedule 2.01 and any other Person that shall have become a party hereto pursuant to an Assignment and Acceptance or an Incremental Amendment, as the case may be, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Acceptance. Unless the context otherwise requires, the term Lenders includes the Swingline Lender.
Letter of Credit means any letter of credit issued pursuant to this Agreement.
Leverage Ratio means, on any date, the ratio of (a) Total Indebtedness as of such date to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters of Holdings ended on such date (or, if such date is not the last day of a fiscal quarter, ended on the last day of the fiscal quarter of Holdings most recently ended prior to such date for which financial statements are available).
LIBO Rate means, with respect to any Eurocurrency Borrowing (other than such Borrowings denominated in a Foreign Currency) for any Interest Period, the rate appearing on Page 3750 of the Dow Jones Market Service (or on any successor or substitute page of such Service, or any successor to or substitute for such Service, providing rate quotations comparable to those currently provided on such page of such Service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, as the rate for dollar deposits with a maturity comparable to such Interest Period. With respect to Eurocurrency Borrowings denominated in a Foreign Currency, the LIBO Rate for any Interest Period shall be determined by the Administrative Agent at approximately 11:00 a.m., London time, on the Quotation Day for such Interest Period by reference to the British Bankers Association Interest Settlement Rates for deposits in the currency of such Borrowing (as reflected on the applicable Telerate screen) for a period equal to such Interest Period. In the event that such rate is not available at such time for any reason, then the LIBO Rate with respect to such Eurocurrency Borrowing for such Interest Period shall be the rate at which deposits in the applicable currency for the Dollar Equivalent of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal London office of the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period. Notwithstanding the foregoing, at no time shall the LIBO Rate with respect to any Eurocurrency Borrowing comprised of Class A Tranche B Loans or Class A Tranche B-1 Loans be less than 2.00%.
Lien means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of
securities, any purchase option, call or similar right of a third party with respect to such securities.
Loan Documents means this Agreement, the Amendment and Restatement Agreement and the Security Documents.
Loan Parties means Holdings, the Parent Borrower, the Subsidiary Term Borrowers, the Foreign Subsidiary Borrowers and the other Subsidiary Loan Parties.
Loans means the loans made by the Lenders to the Parent Borrower, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers pursuant to this Agreement.
Long-Term Indebtedness means any Indebtedness that, in accordance with GAAP, constitutes (or, when incurred, constituted) a long-term liability, including the current portion of any Long-Term Indebtedness.
Mandatory Costs Rate has the meaning set forth in Section 2.20.
Margin Stock shall have the meaning assigned to such term in Regulation U.
Material Adverse Effect means a material adverse effect on (a) the business, operations, properties, assets, financial condition, or material agreements of Holdings, the Parent Borrower and the Subsidiaries (including the Receivables Subsidiary), taken as a whole (it being understood that any effect on the business, operations, properties, assets, financial condition, or material agreements of Holdings, the Parent Borrower and the Subsidiaries (including the Receivables Subsidiary) resulting from the Asset Dropdown will not constitute a material adverse effect for purposes of this clause (a)), (b) the ability of any Loan Party in any material respect to perform any of its obligations under any Loan Document or (c) the rights of or benefits available to the Lenders under any Loan Document.
Material Agreements means (a) any agreements or instruments relating to Material Indebtedness and (b) the Heartland Management Agreement.
Material Indebtedness means (a) Indebtedness in respect of the Existing Subordinated Notes, the Permitted Senior Notes, the Permitted Subordinated Notes and the Permitted Acquisition Subordinated Notes, (b) obligations in respect of the Permitted Receivables Financing and (c) any other Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Hedging Agreements, of any one or more of Holdings, the Parent Borrower and its Subsidiaries evidencing an aggregate outstanding principal amount exceeding $15,000,000. For purposes of determining Material Indebtedness, the principal amount of the obligations of Holdings, the Parent Borrower or any Subsidiary in respect of any Hedging Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that Holdings, the
Parent Borrower or such Subsidiary would be required to pay if such Hedging Agreement were terminated at such time.
Moodys means Moodys Investors Service, Inc.
Mortgage means a mortgage, deed of trust, assignment of leases and rents, leasehold mortgage or other security document granting a Lien on any Mortgaged Property to secure the Obligations. Each Mortgage shall be substantially in the form of Exhibit G to the Existing Credit Agreement with such changes as are necessary under applicable local law.
Mortgaged Property means, initially, each parcel of real property and the improvements thereto owned by a Loan Party and identified on Schedule 1.01(a), and includes each other parcel of real property and improvements thereto with respect to which a Mortgage is granted pursuant to Section 5.12 or 5.13.
Multiemployer Plan means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
Net Proceeds means, with respect to any event (a) the cash proceeds received in respect of such event including (i) any cash received in respect of any noncash proceeds, but only as and when received, (ii) in the case of a casualty, insurance proceeds in excess of $1,000,000 and (iii) in the case of a condemnation or similar event, condemnation awards and similar payments, net of (b) the sum of (i) all reasonable fees and out-of-pocket expenses paid by Holdings, the Parent Borrower and the Subsidiaries to third parties (other than Affiliates) in connection with such event, (ii) in the case of a sale, transfer or other disposition of an asset (including pursuant to a sale and leaseback transaction or a casualty or a condemnation or similar proceeding), the amount of all payments required to be made by Holdings, the Parent Borrower and the Subsidiaries as a result of such event to repay Indebtedness (other than Loans) secured by such asset or otherwise subject to mandatory prepayment as a result of such event, and (iii) the amount of all Taxes paid (or reasonably estimated to be payable) by Holdings, the Parent Borrower and the Subsidiaries, and the amount of any reserves established by Holdings, the Parent Borrower and the Subsidiaries to fund contingent liabilities reasonably estimated to be payable, in each case during the 24-month period immediately following such event and that are directly attributable to such event (as determined reasonably and in good faith by the chief financial officer of Holdings or the Parent Borrower) to the extent such liabilities are actually paid within such applicable time periods. Notwithstanding anything to the contrary set forth above, the proceeds of any sale, transfer or other disposition of receivables (or any interest therein) pursuant to any Permitted Receivables Financing shall not be deemed to constitute Net Proceeds.
Net Working Capital means, at any date, (a) the consolidated current assets of Holdings, the Parent Borrower and its consolidated Subsidiaries (including the Receivables Subsidiary) as of such date (excluding cash and Permitted Investments) minus (b) the consolidated current liabilities of Holdings, the Parent Borrower and its consolidated Subsidiaries (including the Receivables Subsidiary) as of such date
(excluding current liabilities in respect of Indebtedness). Net Working Capital at any date may be a positive or negative number. Net Working Capital increases when it becomes more positive or less negative and decreases when it becomes less positive or more negative.
New Revolving Lender has the meaning assigned to such term in Section 2.23(a).
New U.S. Holdco means a Subsidiary formed after the Restatement Effective Date under the laws of any State of the United States, the Equity Interests of which are held solely by Foreign Subsidiaries; provided that such newly formed Subsidiary shall not engage in any business or own any assets other than the ownership of Equity Interests in Foreign Subsidiaries and intercompany obligations that are otherwise permitted hereunder.
Non-Consenting Lender has the meaning assigned to such term in Section 10.02(c).
Obligations has the meaning assigned to such term in the Security Agreement.
Original Effective Date means June 6, 2002.
Other Taxes means any and all present or future recording, stamp, documentary, excise, transfer, sales, property or similar taxes, charges or levies imposed by any Governmental Authority arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document, other than Excluded Taxes.
Parent Borrower means TriMas Company LLC, a Delaware limited liability company.
PBGC means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
Perfection Certificate means a certificate in the form of Annex I to the Security Agreement or any other form approved by the Collateral Agent.
Permitted Acquisition means any acquisition, whether by purchase, merger, consolidation or otherwise, by the Parent Borrower or a Subsidiary of all or substantially all the assets of, or all the Equity Interests in, a Person or a division, line of business or other business unit of a Person so long as (a) such acquisition shall not have been preceded by a tender offer that has not been approved or otherwise recommended by the board of directors of such Person, (b) such assets are to be used in, or such Person so acquired is engaged in, as the case may be, a business of the type conducted by the Parent Borrower and its Subsidiaries on the date of execution of this Agreement or in a business reasonably related thereto, (c) such acquisition shall be financed with proceeds from
(i) Revolving Loans, Permitted Acquisition Subordinated Notes, Acquisition Lease Financings, Permitted Receivables Financings and/or Qualified Holdings Preferred Stock issued and outstanding pursuant to clause (b) of the definition of Qualified Holdings Preferred Stock, (ii) the issuance of Equity Interests by Holdings, (iii) Excess Cash Flow not required to be used to prepay Tranche B Term Loans pursuant to Section 2.11(e), (iv) Net Proceeds in respect of any Prepayment Event permitted to be reinvested pursuant to Section 2.11(d) or (v) any combination thereof and (d) immediately after giving effect thereto, (i) no Default has occurred and is continuing or would result therefrom, (ii) all transactions related thereto are consummated in all material respects in accordance with applicable laws, (iii) all the Equity Interests (other than Assumed Preferred Stock) of each Subsidiary formed for the purpose of or resulting from such acquisition shall be owned directly by the Parent Borrower or a Subsidiary and all actions required to be taken under Sections 5.12 and 5.13 have been taken, (iv) Holdings, the Parent Borrower and its Subsidiaries are in compliance, on a pro forma basis after giving effect to such acquisition, with the covenants contained in Section 6.13 recomputed as at the last day of the most recently ended fiscal quarter of Holdings for which financial statements are available, as if such acquisition (and any related incurrence or repayment of Indebtedness) had occurred on the first day of each relevant period for testing such compliance (provided that any acquisition that occurs prior to the first testing period under such Sections shall be deemed to have occurred during such first testing period), (v) any Indebtedness or any preferred stock that is incurred, acquired or assumed in connection with such acquisition shall be in compliance with Section 6.01, (vi) the aggregate amount of unused available Revolving Commitments taken together with the amounts available to be drawn under the Permitted Receivables Financing is at least $50,000,000; provided that the consideration paid in respect of Permitted Acquisitions in each of the fiscal years ending on December 31, 2010 and December 31, 2011 shall not exceed the sum of $25,000,000 (which amount may be increased for the fiscal year ending December 31, 2011 by an amount equal to the total unused amount of such $25,000,000 limit for the fiscal year ending December 31, 2010) plus the amount of Net Proceeds in respect of Prepayment Events permitted to be reinvested pursuant to Section 2.11(d) and not otherwise reinvested or used to prepay Tranche B Term Loans pursuant to the terms thereof during such year and (vii) the Parent Borrower has delivered to the Administrative Agent an officers certificate to the effect set forth in clauses (a), (b), (c) and (d)(i) through (vi) above, together with all relevant financial information for the Person or assets to be acquired.
Permitted Acquisition Subordinated Notes means Indebtedness of Holdings or the Parent Borrower in an aggregate principal amount not to exceed at any time the sum of (x) $250,000,000 and (y) the amount of any underwriting or placement discounts, fees or commissions and other financing expenses incurred to yield net proceeds of $250,000,000, less the liquidation value of any applicable Qualified Holdings Preferred Stock issued and outstanding pursuant to clause (b) of the definition of Qualified Holdings Preferred Stock, provided that (a) such Indebtedness and any related Guarantees shall not be secured by any Lien, (b) such Indebtedness shall be subject to subordination and intercreditor provisions that are no more favorable to the holders or obligees thereof than the subordination or intercreditor provisions of the Existing
Subordinated Notes in any material respect, (c) such Indebtedness shall not have any principal payments due prior to the date that is 12 months after the Class A Tranche B Maturity Date (which for purposes of this provision shall be deemed to be December 15, 2015), whether at maturity or otherwise, except upon the occurrence of a change of control or similar event (including asset sales), in each case so long as the provisions relating to change of control or similar events (including asset sales) included in the governing instrument of such Indebtedness provide that the provisions of this Agreement must be satisfied prior to the satisfaction of such provisions of such Indebtedness and (d) such Indebtedness bears interest at a fixed rate, which rate shall be, in the good faith judgment of the Parent Borrowers board of directors, consistent with the market at the time of issuance for similar Indebtedness for comparable issuers or borrowers.
Permitted Capital Expenditure Amount means with respect to any fiscal year, the sum of (i) the Base Amount for such fiscal year as specified below, (ii) 10% of Acquired Assets (the Acquired Assets Amount) and (iii) for each fiscal year after any Acquired Assets Amount is initially included in clause (ii) above, 5% of such Acquired Assets Amount, calculated on a cumulative basis.
Fiscal Year Ended |
|
Base Amount |
|
|
2006 |
|
$ |
40,000,000 |
|
2007 |
|
$ |
40,000,000 |
|
2008 |
|
$ |
44,000,000 |
|
2009 |
|
$ |
48,400,000 |
|
2010 |
|
$ |
37,500,000 |
|
2011 |
|
$ |
37,500,000 |
|
2012 |
|
$ |
40,000,400 |
|
2013 and thereafter |
|
$ |
45,000,000 |
|
Permitted Encumbrances means:
provided that the term Permitted Encumbrances shall not include any Lien securing Indebtedness.
Permitted Investments means:
Permitted Joint Venture and Foreign Subsidiary Investments means investments by Holdings, the Parent Borrower or any Subsidiary in the Equity Interests of (a) any Person that is not a Subsidiary or (b) any Person that is a Foreign Subsidiary, in an aggregate amount not to exceed $50,000,000; provided that such amount shall increase to (i) $75,000,000 upon completion of the IPO Repayment Event and (ii) $100,000,000 upon completion of the IPO Repayment Event and after the Leverage Ratio is less than 3.75 to 1.00.
Permitted Receivables Documents means the Receivables Purchase Agreement, the Receivables Transfer Agreement and all other documents and agreements relating to the Permitted Receivables Financing.
Permitted Receivables Financing means (a) the sale by the Parent Borrower and certain Subsidiaries (other than Foreign Subsidiaries) of accounts receivable to the Receivables Subsidiary pursuant to the Receivables Purchase Agreement and (b) the sale or pledge of such accounts receivable (or participations therein) by the Receivables Subsidiary to certain purchasers pursuant to the Receivables Transfer Agreement.
Permitted Senior Notes means Indebtedness of Holdings or the Parent Borrower, provided that (a) such Indebtedness and any related Guarantees shall not be secured by any Lien, (b) the net proceeds from such Indebtedness shall be used to prepay Tranche B Term Loans pursuant to Section 2.11(d), except that up to $250,000,000 in proceeds from such Indebtedness may instead be used to repay Revolving Loans pursuant to Section 2.09(a) and reduce the balances in respect of the Permitted Receivables Financing, in either case, only if, immediately after giving effect to such repayment, the Senior Leverage Ratio is less than 3.00 to 1.00, (c) such Indebtedness shall not have any principal payments due prior to December 15, 2016, whether at maturity or otherwise, except upon the occurrence of a change of control or similar event (including asset sales), in each case so long as the provisions relating to change of control or similar events (including asset sales) included in the governing instrument of such Indebtedness provide that the provisions of this Agreement must be satisfied (or, in the case of asset sales, permit the provisions of this Agreement to be satisfied) prior to the satisfaction of such provisions of such Indebtedness and (d) such Indebtedness bears interest at a fixed rate, which rate shall be, in the good faith judgment of the Parent Borrowers board of directors, consistent with the market at the time of issuance for similar Indebtedness for comparable issuers or borrowers.
Permitted Subordinated Notes means Indebtedness of Holdings or the Parent Borrower, provided that (a) such Indebtedness and any related Guarantees shall not be secured by any Lien, (b) such Indebtedness shall be subject to subordination and intercreditor provisions that are no more favorable to the holders or obligees thereof than the subordination or intercreditor provisions of the Existing Subordinated Notes in any material respect, (c) the Net Proceeds from such Indebtedness shall be used to prepay Tranche B Term Loans pursuant to Section 2.11(d), except that up to $250,000,000 in proceeds from such Indebtedness may instead be used to repay Revolving Loans pursuant to Section 2.09(a) and reduce the balances in respect of the Permitted Receivables Financing, only if, immediately after giving effect to such repayment, the Senior Leverage Ratio is less than 3.00 to 1.00, (d) such Indebtedness shall not have any principal payments due prior to December 15, 2016, whether at maturity or otherwise, except upon the occurrence of a change of control or similar event (including asset sales), in each case so long as the provisions relating to change of control or similar events (including asset sales) included in the governing instrument of such Indebtedness provide that the provisions of this Agreement must be satisfied (or, in the case of asset sales, permit the provisions of this Agreement to be satisfied) prior to the satisfaction of such provisions of such Indebtedness and (e) such Indebtedness bears interest at a fixed rate, which rate shall be, in the good faith judgment of the Parent Borrowers board of
directors, consistent with the market at the time of issuance for similar Indebtedness for comparable issuers or borrowers.
Permitted Subordinated Notes Refinancing Indebtedness means Indebtedness of Holdings or the Parent Borrower; provided that (a) the aggregate principal amount of such Indebtedness shall not exceed the sum of the aggregate principal amount of Existing Subordinated Notes refinanced thereby plus fees, expenses and call premiums relating thereto plus $25,000,000, (b) all Net Proceeds from such Indebtedness (other than the portion of such Net Proceeds attributable to the $25,000,000 amount in excess of payments in respect of the Existing Subordinated Notes referred to in clause (a) above) shall be used to repay the Existing Subordinated Notes and to pay related fees, expenses and call premiums, (c) such Indebtedness (and any related Guarantees) shall be either unsecured or secured by the Collateral on a second lien basis to the Obligations and shall not be secured by any property or assets of Holdings or any Subsidiary other than the Collateral, (d) if so secured, the holders of such Indebtedness, or a trustee or agent acting on behalf of such holders, shall enter into an Intercreditor Agreement with the Collateral Agent, (e) such Indebtedness shall not have any principal payments due prior to March 31, 2016, whether at maturity or otherwise, except upon the occurrence of a change of control or similar event (including asset sales), in each case so long as the provisions relating to change of control or similar events (including asset sales) included in the governing instrument of such Indebtedness provide that the provisions of this Agreement must be satisfied (or, in the case of asset sales, permit the provisions of this Agreement to be satisfied) prior to the satisfaction of such provisions of such Indebtedness and (f) such Indebtedness shall bear interest at a fixed rate, which rate shall be, in the good faith judgment of the Parent Borrowers board of directors, consistent with the market at the time of issuance for similar Indebtedness for comparable issuers or borrowers.
Person means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
Plan means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Parent Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an employer as defined in Section 3(5) of ERISA.
Pledge Agreement means the Pledge Agreement, substantially in the form of Exhibit H to the Existing Credit Agreement, among Holdings, the Parent Borrower, the Subsidiary Loan Parties party thereto and the Collateral Agent for the benefit of the Secured Parties.
Preferred Dividends means any cash dividends of Holdings permitted hereunder paid with respect to preferred stock of Holdings.
Prepayment Event means:
Prime Rate means the rate of interest per annum publicly announced from time to time by JPMCB as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.
Purchase Agreement means the Stock Purchase Agreement dated as of May 17, 2002, among Heartland, Holdings and Seller as amended, supplemented or otherwise modified from time to time.
Qualified Holdings Preferred Stock means any preferred capital stock or preferred equity interest of Holdings (a)(i) that does not provide for any cash dividend payments or other cash distributions in respect thereof prior to the Class A Tranche B Maturity Date and (ii) that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable) or upon the happening of any event does not (A)(x) mature or become mandatorily redeemable pursuant to a sinking fund obligation or otherwise; (y) become convertible or exchangeable at the option of the holder thereof for Indebtedness or preferred stock that is not Qualified Holdings Preferred Stock; or (z) become redeemable at the option of the holder thereof (other than as a result of a change of control event), in whole or in part, in each case on or prior to the first anniversary of the Class A Tranche B Maturity Date (which for purposes of this provision shall be deemed to be December 15, 2015) and (B) provide holders thereunder with any rights upon the occurrence of a change of control event prior to the repayment of the
Obligations under the Loan Documents, (b) with respect to which Holdings has delivered a notice to the Administrative Agent that it has issued preferred stock or preferred equity interest in lieu of incurring (x) Permitted Acquisition Subordination Notes or (y) Indebtedness permitted by clause (xiii) under Section 6.01(a), with such notice specifying to which of such Indebtedness such preferred stock or preferred equity interest applies; provided that (i) the aggregate liquidation value of all such preferred stock or preferred equity interest issued pursuant to this clause (b) shall not exceed at any time the dollar limitation related to the applicable Indebtedness hereunder, less the aggregate principal amount of such Indebtedness then outstanding and (ii) the terms of such preferred stock or preferred equity interests (x) shall provide that upon a default thereof, the remedies of the holders thereof shall be limited to the right to additional representation on the board of directors of Holdings and (y) shall otherwise be no less favorable to the Lenders, in the aggregate, than the terms of the applicable Indebtedness or (c) having an aggregate initial liquidation value not to exceed $25,000,000, provided that the terms of such preferred stock or preferred equity interests shall provide that upon a default thereof, the remedies of the holders thereof shall be limited to the right to additional representation on the board of directors of Holdings.
Quotation Day means, with respect to any Eurocurrency Borrowing denominated in a Foreign Currency and any Interest Period, the day on which it is market practice in the relevant interbank market for prime banks to give quotations for deposits in the currency of such Borrowing for delivery on the first day of such Interest Period. If such quotations would normally be given by prime banks on more than one day, the Quotation Day will be the last of such days.
Reaffirmation Agreement means the Reaffirmation Agreement dated as of the date hereof, among the Parent Borrower, Holdings, the Subsidiary Loan Parties and JPMCB, as Administrative Agent and Collateral Agent.
Receivables Purchase Agreement means (a) the Receivables Purchase Agreement dated as of June 6, 2002 among the Receivables Subsidiary, Holdings, the Parent Borrower and the Subsidiaries party thereto, related to the Permitted Receivables Financing, as may be amended, supplemented or otherwise modified to the extent permitted by Section 6.11 and (b) any agreement replacing such Receivables Purchase Agreement, provided that such replacing agreement contains terms that are substantially similar to such Receivables Purchase Agreement and that are otherwise no more adverse to the Lenders than the applicable terms of such Receivables Purchase Agreement. It is understood that the receivables purchase agreement relating to the proposed receivables securitization facility to be arranged by Wachovia Bank, National Assocation and Wells Fargo Securities LLC or any of their respective affiliates, on terms substantially similar to those under the Receivables Purchase Agreement referred to in clause (a) above, as approved by the Administrative Agent, will be a Receivables Purchase Agreement.
Receivables Subsidiary means TSPC, Inc., a Nevada corporation.
Receivables Transfer Agreement means (a) the Receivables Transfer Agreement dated as of the Original Effective Date, among the Receivables Subsidiary, Holdings and the purchasers party thereto, relating to the Permitted Receivables Financing, as may be amended, supplemented or otherwise modified to the extent permitted by Section 6.11 and (b) any agreement replacing such Receivables Transfer Agreement, provided that such replacing agreement contains terms that are substantially similar to such Receivables Transfer Agreement and that are otherwise no more adverse to the Lenders than the applicable terms of such Receivables Transfer Agreement. It is understood that the receivables transfer agreement relating to the proposed receivables securitization facility to be arranged by Wachovia Bank, National Assocation and Wells Fargo Securities LLC or any of their respective affiliates, on terms substantially similar to those under the Receivables Transfer Agreement referred to in clause (a) above, as approved by the Administrative Agent, will be a Receivables Transfer Agreement.
Register has the meaning set forth in Section 10.04.
Regulation U shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
Regulation X shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
Related Parties means, with respect to any specified Person, such Persons Affiliates and the respective directors, officers, employees, agents, trustees and advisors of such Person and such Persons Affiliates.
Release means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or within any building, structure, facility or fixture.
Replacement Subordinated Notes means Indebtedness of Holdings or the Parent Borrower of the type described in clauses (a), (b), (d) and (e) of the definition of Permitted Subordinated Notes.
Required Lenders means, at any time, Lenders having Revolving Exposures, Tranche B Term Loans, Tranche B-1 Commitments and unused Revolving Commitments representing more than 50% of the sum of the total Revolving Exposures, outstanding Tranche B Term Loans, Tranche B-1 Commitments and unused Revolving Commitments at such time.
Restatement Effective Date has the meaning assigned to such term in the Amendment and Restatement Agreement.
Restatement Transactions means (a) the execution and delivery by each Loan Party that is a party thereto of the Amendment and Restatement Agreement and any amendments or modifications to the other Loan Documents contemplated thereby, (b) the
amendment and restatement of the Existing Credit Agreement in the form of this Agreement and the consummation of the other transactions and matters contemplated by the Amendment and Restatement Agreement and (c) the payment of fees and expenses incurred in connection with the foregoing.
Restricted Indebtedness means Indebtedness of Holdings, the Parent Borrower or any Subsidiary, the payment, prepayment, redemption, repurchase or defeasance of which is restricted under Section 6.08(b).
Restricted Payment means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in Holdings, the Parent Borrower or any Subsidiary (including the Receivables Subsidiary), or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancelation or termination of any Equity Interests in Holdings, the Parent Borrower or any Subsidiary (including the Receivables Subsidiary) or any option, warrant or other right to acquire any such Equity Interests in Holdings, the Parent Borrower or any Subsidiary (including the Receivables Subsidiary).
Revolving Commitments means Class A Revolving Commitments, Class B Revolving Commitments and Class C Revolving Commitments.
Revolving Exposure means Class A Revolving Exposure, Class B Revolving Exposure or Class C Revolving Exposure (or any combination thereof) as the context requires.
Revolving LC Disbursement means a payment made by any Issuing Bank pursuant to a Revolving Letter of Credit.
Revolving LC Exposure means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Revolving Letters of Credit at such time plus (b) the aggregate amount of all Revolving LC Disbursements that have not yet been reimbursed by or on behalf of the Parent Borrower at such time (by the borrowing of Loans or otherwise). The Revolving LC Exposure of any Class A Revolving Lender at any time shall be its Class A Revolving Applicable Percentage of the total Revolving LC Exposure at such time.
Revolving Lenders means the Class A Revolving Lenders, Class B Revolving Lenders and Class C Revolving Lenders.
Revolving Letter of Credit means, at any time, each Letter of Credit outstanding at such time designated as a Revolving Letter of Credit pursuant to Section 2.05(a).
Revolving Loans means the Class A Revolving Loans, Class B Revolving Loans and Class C Revolving Loans.
S&P means Standard & Poors Rating Services, a division of The McGraw-Hill Companies, Inc., or any successor thereto.
Secured Parties has the meaning assigned to such term in the Security Agreement.
Security Agreement means the Security Agreement, substantially in the form of Exhibit I to the Existing Credit Agreement, among Holdings, the Parent Borrower, the Subsidiary Loan Parties party thereto and the Collateral Agent for the benefit of the Secured Parties.
Security Documents means the Security Agreement, the Pledge Agreement, the Mortgages, the Guarantee Agreement, the Indemnity, Subrogation and Contribution Agreement, the Intercreditor Agreement, each Foreign Security Document entered into pursuant to Section 2.21 and Section 4.03 and each other security agreement or other instrument or document executed and delivered pursuant to Section 5.12 or 5.13 to secure any of the Obligations.
Seller means Metaldyne Corporation, a Delaware corporation.
Senior Indebtedness means Total Indebtedness less Subordinated Debt.
Senior Leverage Ratio means, on any date, the ratio of (a) Senior Indebtedness as of such date to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters of the Parent Borrower ended on such date (or, if such date is not the last day of a fiscal quarter, ended on the last day of the fiscal quarter of the Parent Borrower most recently ended prior to such date for which financial statements are available).
Shareholder Agreement means the Shareholders Agreement dated as of the Original Effective Date, among Holdings, Heartland and the other parties thereto, as amended from time to time.
Specified Obligations means Obligations consisting of the principal and interest on Loans, reimbursement obligations in respect of LC Disbursements and fees.
Statutory Reserve Rate means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board (or in the case of Foreign Currency Borrowings, the applicable Governmental Authority) to which the Administrative Agent is subject with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as Eurocurrency Liabilities in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any
Lender under any applicable law, rule or regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
Sterling or £ means the lawful money of the United Kingdom.
Sub-Account has the meaning set forth in Section 2.01(a)(ii)(A).
Subordinated Debt means the Existing Subordinated Notes, the Permitted Subordinated Notes, the Permitted Acquisition Subordinated Notes and any other subordinated Indebtedness of Holdings, the Parent Borrower or any Subsidiary.
Subordinated Notes Documents means the indenture under which any of the Existing Subordinated Notes, the Permitted Subordinated Notes and the Permitted Acquisition Subordinated Notes are issued and all other instruments, agreements and other documents evidencing or governing such Notes or providing for any Guarantee or other right in respect thereof.
subsidiary means, with respect to any Person (the parent) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parents consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
Subsidiary means any subsidiary of the Parent Borrower or Holdings, as the context requires, including the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers. Unless expressly otherwise provided, the term Subsidiary shall not include the Receivables Subsidiary.
Subsidiary Loan Party means (a) any Subsidiary that is not a Foreign Subsidiary (other than (i) the Foreign Subsidiary Borrowers and (ii) any New U.S. Holdco), (b) any Subsidiary Term Borrower and (c) any Foreign Subsidiary Borrower and any other Foreign Subsidiary that executes a guarantee agreement pursuant to paragraph (c) of the Collateral and Guarantee Requirement.
Subsidiary Term Borrowers means each direct or indirect wholly owned domestic subsidiary of the Parent Borrower listed on the signature page of the Existing Credit Agreement.
Swingline Exposure means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Class A
Revolving Lender at any time shall be its Class A Revolving Applicable Percentage of the total Swingline Exposure at such time.
Swingline Lender means either JPMCB, in its capacity as lender of Swingline Loans hereunder, or Comerica Bank, in its capacity as lender of Swingline Loans hereunder, as the case may be. References herein and in the other Loan Documents to the Swingline Lender shall be deemed to refer to the Swingline Lender in respect of the applicable Swingline Loan or to all Swingline Lenders, as the context requires.
Swingline Loan means a Loan made pursuant to Section 2.04.
Synthetic Purchase Agreement means any swap, derivative or other agreement or combination of agreements pursuant to which Holdings, the Parent Borrower or a Subsidiary is or may become obligated to make (i) any payment (other than in the form of Equity Interests of Holdings) in connection with a purchase by a third party from a Person other than Holdings, the Parent Borrower or a Subsidiary of any Equity Interest or Restricted Indebtedness or (ii) any payment (other than on account of a permitted purchase by it of any Equity Interest or any Restricted Indebtedness) the amount of which is determined by reference to the price or value at any time of any Equity Interest or Restricted Indebtedness; provided that (i) the other obligations under the Purchase Agreement or (ii) phantom stock or similar plans providing for payments only to current or former directors, officers, consultants, advisors or employees of Holdings, the Parent Borrower or the Subsidiaries (or to their heirs or estates) shall not be deemed to be a Synthetic Purchase Agreement.
Taxes means any and all present or future taxes (of any nature whatsoever), levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.
Term Loan Borrowers means the Parent Borrower and the Subsidiary Term Borrowers.
Total Indebtedness means, as of any date, the sum of, without duplication, (a) the aggregate principal amount of Indebtedness of Holdings, the Parent Borrower and the Subsidiaries outstanding as of such date, in the amount that would be reflected on a balance sheet prepared as of such date on a consolidated basis in accordance with GAAP, plus (b) the aggregate Net Investment as defined in Annex A to the Receivables Transfer Agreement, plus (c) the aggregate principal amount of Indebtedness of Holdings, the Parent Borrower and the Subsidiaries outstanding as of such date that is not required to be reflected on a balance sheet in accordance with GAAP, determined on a consolidated basis; provided that, for purposes of clause (c) above, the term Indebtedness shall not include (i) contingent obligations of Holdings, the Parent Borrower or any Subsidiary as an account party in respect of any letter of credit or letter of guaranty unless, without duplication, such letter of credit or letter of guaranty supports an obligation that constitutes Indebtedness and (ii) Indebtedness described in Section 6.01(a)(xii).
Tranche B Lenders means the Class A Tranche B Lenders and Class B Tranche B Lenders.
Tranche B Maturity Date means the Class A Tranche B Maturity Date or the Class B Tranche B Maturity Date, as applicable.
Tranche B Term Loans means the Class A Tranche B Term Loans and Class B Tranche B Term Loans.
Tranche B-1 Applicable Percentage means, with respect to any Tranche B-1 Lender, the percentage of the Tranche B-1 Total Commitment represented by such Lenders Tranche B-1 Commitment. If the Tranche B-1 Commitments have been reduced to zero, the Tranche B-1 Applicable Percentages shall be determined based upon the Tranche B-1 Commitments most recently in effect, giving effect to any assignments.
Tranche B-1 Availability Period means the period from and including the First Restatement Effective Date to but excluding the earlier of the Class B Revolving Commitment Termination Date and the date of termination of the Tranche B-1 Commitments.
Tranche B-1 Commitments means the Class A Tranche B-1 Commitments and Class B Tranche B-1 Commitments.
Tranche B-1 Credit Exposure means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lenders Tranche B-1 Loans and such Lenders Tranche B-1 LC Exposure at such time.
Tranche B-1 LC Disbursement means a payment made by any Issuing Bank pursuant to a Tranche B-1 Letter of Credit.
Tranche B-1 LC Exposure means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Tranche B-1 Letters of Credit at such time plus (b) the aggregate amount of all Tranche B-1 LC Disbursements that have not yet been reimbursed by or on behalf of the Parent Borrower at such time (by the borrowing of Loans or otherwise). The Tranche B-1 LC Exposure of any Lender at any time shall be its Tranche B-1 Applicable Percentage of the total Tranche B-1 LC Exposure at such time.
Tranche B-1 Lender means a Class A Tranche B-1 Lender or a Class B Tranche B-1 Lender.
Tranche B-1 Letter of Credit means, at any time, each Letter of Credit outstanding at such time designated as a Tranche B-1 Letter of Credit pursuant to Section 2.05(a).
Tranche B-1 Loan means a Loan made pursuant to Section 2.02(a)(ii).
Tranche B-1 Total Commitment means, at any time, the aggregate amount of all the Tranche B-1 Commitments at such time.
Transactions means (a) the execution, delivery and performance by each Loan Party of the Loan Documents to which it is to be a party, the borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of Credit hereunder and (b) the payment of the fees and expenses payable in connection with (a) above.
Type, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
Undrawn/Unreimbursed Tranche B-1 LC Exposure means, at any time, the sum of (a) the aggregate undrawn amounts of all outstanding Tranche B-1 Letters of Credit at such time plus (b) the aggregate amounts of all Tranche B-1 LC Disbursements that have not yet been (i) reimbursed by or on behalf of the Parent Borrower at such time (by the borrowing of Loans or otherwise) or (ii) otherwise repaid to the applicable Issuing Banks by the application of the Deposits pursuant to Section 2.05(e). The Undrawn/Unreimbursed Tranche B-1 LC Exposure of any Lender at any time shall be its Tranche B-1 Applicable Percentage of the total Undrawn/Unreimbursed Tranche B-1 LC Exposure at such time.
Withdrawal Liability means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
(1) The Deposits of each Tranche B-1 Lender (including the amount deposited in the Deposit Account by such Lender on the First Restatement Effective Date in an amount equal to such Lenders Tranche B-1 Commitment) shall be available, on the terms and subject to the conditions set forth herein, (A) to fund Tranche B-1 Loans by such Tranche B-1 Lender pursuant to Section 2.02(a) and (B) for application pursuant to Section 2.05(e) to reimburse such Lenders Tranche B-1 Applicable Percentage of Tranche B-1 LC Disbursements that are not reimbursed by the Parent Borrower.
(2) On any date prior to the Class B Revolving Commitment Termination Date on which the Administrative Agent receives any payment for the account of any Tranche B-1 Lender with respect to the principal amount of any of its Tranche B-1 Loans, subject to clause (4) below, the Administrative Agent shall deposit such amount in the Deposit Account and credit such amount to the Sub-Account of such Tranche B-1 Lender.
(3) On any date prior to the Class B Revolving Commitment Termination Date on which the Administrative Agent or any Issuing Bank receives any reimbursement payment from the Parent Borrower in respect of a Tranche B-1 LC Disbursement with respect to which amounts were withdrawn from the Deposit Account to reimburse any Issuing Bank, subject to clause (4) below, the Administrative Agent shall deposit in the Deposit Account, and credit to the Sub-Accounts of the Tranche B-1 Lenders, the portion of such reimbursement payment to be deposited therein, in accordance with Section 2.05(e).
(4) If at any time when any amount is required to be deposited in the Deposit Account under clause (2) or (3) above the sum of such amount and the aggregate amount of the Deposits at such time would exceed the Tranche B-1 Total Commitment minus the aggregate principal amount of the outstanding Tranche B-1 Loans, then such excess shall not be deposited in the Deposit Account and the Administrative Agent shall instead pay to each Tranche B-1 Lender its Tranche B-1 Applicable Percentage of such excess.
(5) Concurrently with the effectiveness of any assignment by any Tranche B-1 Lender of all or any portion of its Tranche B-1 Commitment, the Administrative Agent shall transfer into the Sub-Account of the assignee the corresponding portion of the amount on deposit in the assignors Sub-Account in accordance with Section 10.04(b)(vii)(B)(2).
(1) On each date on which a Tranche B-1 Borrowing is to be made, the Administrative Agent shall, pursuant to Section 2.02(a) or Section 2.05(e), as applicable, and subject to the satisfaction of the conditions applicable thereto set forth in Section 4.02, withdraw from the Deposit Account the principal amount of such Tranche B-1 Borrowing (and debit the Sub-Account of each Tranche B-1 Lender in the amount of such Lenders Tranche B-1 Applicable Percentage of such Borrowing) and make such amount available to the Parent Borrower.
(2) On each date on which an Issuing Bank is to be reimbursed by the Tranche B-1 Lenders pursuant to Section 2.05(e) for any Tranche B-1 LC Disbursement, the Administrative Agent shall withdraw from the Deposit Account the amount of such unreimbursed Tranche B-1 LC Disbursement (and debit the Sub-Account of each Tranche B-1 Lender in the amount of such Tranche B-1 Lenders Applicable Percentage of such unreimbursed Tranche B-1 LC Disbursement) and make such amount available to such Issuing Bank in accordance with Section 2.05(e).
(3) Concurrently with each voluntary reduction of the Tranche B-1 Total Commitment pursuant to and in accordance with Section 2.08(b), the Administrative Agent shall withdraw from the Deposit Account and pay to each Tranche B-1 Lender such Tranche B-1 Lenders Applicable Percentage of any amount by which the Deposits, after giving effect to such reduction of the Tranche B-1 Total Commitment, would exceed the Tranche B-1 Total Commitment minus the aggregate principal amount of the outstanding Tranche B-1 Loans and unreimbursed Tranche B-1 LC Disbursements that have been funded by the application of Deposits.
(4) Concurrently with any reduction of the Tranche B-1 Total Commitment to zero pursuant to and in accordance with Section 2.08(c) or Article VII, the Administrative Agent shall withdraw from the Deposit Account and pay to each Tranche B-1 Lender such Tranche B-1 Lenders Tranche B-1 Applicable Percentage of the excess at such time of the aggregate amount of the Deposits over the Undrawn/Unreimbursed Tranche B-1 LC Exposure.
(5) Concurrently with the effectiveness of any assignment by any Tranche B-1 Lender of all or any portion of its Tranche B-1 Commitment, the corresponding portion of the assignors Sub-Account shall be transferred from the assignors Sub-Account to the assignees Sub-Account in accordance with Section 10.04(b) and, if required by Section 10.04(b), the Administrative Agent shall close such assignors Sub-Account.
(6) Upon the reduction of each of the Tranche B-1 Total Commitment and the Undrawn/Unreimbursed Tranche B-1 LC Exposure to zero,
the Administrative Agent shall withdraw from the Deposit Account and pay to each Tranche B-1 Lender the entire remaining amount of such Tranche B-1 Lenders Deposit, and shall close the Deposit Account.
Each Tranche B-1 Lender irrevocably and unconditionally agrees that its Deposit may be applied or withdrawn from time to time as set forth in this Section 2.01(a)(ii)(C).
If no election as to the Class of any Revolving Borrowing is specified, then the requested Revolving Borrowing shall be a Class A/C Revolving Borrowing. If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing, unless such Borrowing is a Foreign Currency Borrowing, in which case such Borrowing shall be a Eurocurrency Borrowing. If no Interest Period is specified with respect to any requested Eurocurrency Revolving Loan, then the Parent Borrower shall be deemed to have selected an Interest Period of one months duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lenders Loan to be made as part of the requested Borrowing.
If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify an Interest Period, then the Parent Borrower, the applicable Subsidiary Term Borrower or the applicable Foreign Subsidiary Borrower, as the case may be, shall be deemed to have selected an Interest Period of one months duration.
Date |
|
Amount |
|
|
December 31, 2009 |
|
$ |
650,000 |
|
March 31, 2010 |
|
$ |
650,000 |
|
June 30, 2010 |
|
$ |
650,000 |
|
September 30, 2010 |
|
$ |
650,000 |
|
December 31, 2010 |
|
$ |
650,000 |
|
March 31, 2011 |
|
$ |
650,000 |
|
June 30, 2011 |
|
$ |
650,000 |
|
September 30, 2011 |
|
$ |
650,000 |
|
December 31, 2011 |
|
$ |
650,000 |
|
March 31, 2012 |
|
$ |
650,000 |
|
June 30, 2012 |
|
$ |
650,000 |
|
September 30, 2012 |
|
$ |
650,000 |
|
December 31, 2012 |
|
$ |
650,000 |
|
Date |
|
Amount |
|
|
March 31, 2013 |
|
$ |
650,000 |
|
June 30, 2013 |
|
$ |
650,000 |
|
September 30, 2013 |
|
$ |
650,000 |
|
December 31, 2013 |
|
$ |
650,000 |
|
March 31, 2014 |
|
$ |
650,000 |
|
June 30, 2014 |
|
$ |
650,000 |
|
September 30, 2014 |
|
$ |
650,000 |
|
December 31, 2014 |
|
$ |
650,000 |
|
March 31, 2015 |
|
$ |
650,000 |
|
June 30, 2015 |
|
$ |
650,000 |
|
September 30, 2015 |
|
$ |
650,000 |
|
provided that the foregoing scheduled amortization payments shall be deemed to include, with respect to each Class of Tranche B Term Loans, the entire remaining principal amount of the Tranche B Term Loans of such Class payable on the applicable Tranche B Maturity Date. It is understood that the foregoing scheduled repayments of Class A Tranche B Term Loans and Class B Tranche B Term Loans are intended to result in scheduled repayments of such Term Loans in the same amounts that would have been required, as of the Restatement Effective Date, if the Restatement Transactions had not occurred, but taking into account adjustments subsequent to the Restatement Effective Date and, in the case of Class A Tranche B Loans, scheduled repayments after the date that such Loans would have matured under the Existing Credit Agreement.
then the Administrative Agent shall give notice thereof to the Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers) and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers) and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing denominated in such currency to, or continuation of any Borrowing denominated in such currency as, a Eurocurrency Borrowing shall be ineffective, and any Eurocurrency Borrowing denominated in such currency that is requested to be continued (A) if such currency is the dollar, shall be converted to an ABR Borrowing on the last day of the Interest Period applicable thereto and (B) if such currency is a Foreign Currency, shall be repaid on the last day of the Interest Period applicable thereto and (ii) if any Borrowing Request requests a Eurocurrency Borrowing denominated in such currency (A) if such currency is the dollar, such Borrowing shall be made as an ABR Borrowing and (B) if such currency is a Foreign Currency, such Borrowing Request shall be ineffective.
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining its Deposit or any Eurocurrency Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise), then the Parent Borrower, the applicable Subsidiary Term Borrowers or the applicable Foreign Subsidiary Borrowers, as the case may be, will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.
Each of Holdings, the Parent Borrower, each Subsidiary Term Borrower (as to itself only) and each Foreign Subsidiary Borrower (as to itself only) represents and warrants to the Lenders that:
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by Holdings and the Parent Borrower on the date thereof as to the matters specified in paragraphs (a) and (b) of this Section.
Until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full
and all Letters of Credit shall have expired or terminated and all LC Disbursements shall have been reimbursed, each of Holdings, the Parent Borrower, each Subsidiary Term Borrower (as to itself only) and each Foreign Subsidiary Borrower (as to itself only) covenants and agrees with the Lenders that:
Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive officer of the Parent Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times and as often as reasonably requested.
the aggregate are acquired by the Parent Borrower or any Subsidiary Loan Party after the Original Effective Date or through the acquisition of a Subsidiary Loan Party under Section 5.12 (other than, in each case, assets constituting Collateral under the Security Agreement or the Pledge Agreement that become subject to the Lien of the Security Agreement or the Pledge Agreement upon acquisition thereof), the Parent Borrower or, if applicable, the relevant Subsidiary Loan Party will notify the Administrative Agent and the Lenders thereof, and, if reasonably requested by the Administrative Agent or the Required Lenders, the Parent Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (a) of this Section, all at the expense of the Loan Parties.
Until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired or terminated and all LC Disbursements shall have been reimbursed, each of Holdings, the Parent Borrower, each Subsidiary Term Borrower (as to itself only) and each Foreign Subsidiary Borrower (as to itself only) covenants and agrees with the Lenders that:
provided that (x) all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by clause (b) above) shall be made for fair value and (y) all sales, transfers, leases and other dispositions permitted by clauses (i) and (j) above shall be for at least 85% cash consideration.
of the Loan Parties under the Loan Documents, (ii) the foregoing shall not apply to restrictions and conditions existing on the First Restatement Effective Date identified on Schedule 6.10 (but shall apply to any extension or renewal of, or any amendment or modification expanding the scope of, any such restriction or condition), (iii) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale, provided, further, that such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness and (v) clause (a) of the foregoing shall not apply to customary provisions in leases and other agreements restricting the assignment thereof.
Period |
|
Ratio |
|
April 1, 2006, to September 30, 2006 |
|
1.50 to 1.00 |
|
October 1, 2006, to March 31, 2007 |
|
1.70 to 1.00 |
|
April 1, 2007, to September 30, 2007 |
|
1.85 to 1.00 |
|
October 1, 2007, to June 30, 2008 |
|
1.90 to 1.00 |
|
July 1, 2008, to December 31, 2008 |
|
2.00 to 1.00 |
|
January 1, 2009, to June 30, 2009 |
|
2.10 to 1.00 |
|
July 1, 2009, to December 31, 2009 |
|
2.20 to 1.00 |
|
January 1, 2010, to March 31, 2010 |
|
2.30 to 1.00 |
|
April 1, 2010 to June 30, 2010 |
|
2.15 to 1.00 |
|
July 1, 2010 to June 30, 2011 |
|
2.00 to 1.00 |
|
Period |
|
Ratio |
|
July 1, 2011 to June 30, 2012 |
|
2.25 to 1.00 |
|
July 1, 2012 to December 31, 2012 |
|
2.40 to 1.00 |
|
January 1, 2013, to September 30, 2013 |
|
2.50 to 1.00 |
|
October 1, 2013, and thereafter |
|
2.75 to 1.00 |
|
Period |
|
Ratio |
|
April 1, 2006, to December 31, 2006 |
|
5.75 to 1.00 |
|
January 1, 2007, to June 30, 2007 |
|
5.65 to 1.00 |
|
July 1, 2007, to September 30, 2007 |
|
5.50 to 1.00 |
|
October 1, 2007, to June 30, 2008 |
|
5.25 to 1.00 |
|
July 1, 2008, to June 30, 2009 |
|
5.00 to 1.00 |
|
July 1, 2009, to September 30, 2009 |
|
4.75 to 1.00 |
|
October 1, 2009, to December 31, 2009 |
|
4.50 to 1.00 |
|
January 1, 2010 to March 31, 2010 |
|
5.00 to 1.00 |
|
April 1, 2010 to June 30, 2010 |
|
5.25 to 1.00 |
|
July 1, 2010 to December 31, 2010 |
|
5.00 to 1.00 |
|
January 1, 2011 to June 30, 2011 |
|
4.75 to 1.00 |
|
July 1, 2011 to September 30, 2011 |
|
4.50 to 1.00 |
|
October 1, 2011 to September 30, 2012 |
|
4.25 to 100 |
|
October 1, 2012, to June 30, 2013 |
|
4.00 to 1.00 |
|
July 1, 2013, and thereafter |
|
3.50 to 1.00 |
|
Section 6.14(a) by an amount equal to the total unused amount of permitted Capital Expenditures for the immediately preceding fiscal year (without giving effect to the amount of any unused permitted Capital Expenditures that were carried forward to such preceding fiscal year); provided that any such unused amounts shall be disregarded and no such increase shall be permitted with respect to the amount of Capital Expenditures permitted to be made during the fiscal year ending on December 31, 2010.
If any of the following events (Events of Default) shall occur:
then, and in every such event (other than an event with respect to the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower described in clause (h) or (i) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers), take either or both of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Parent Borrower, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers; and in case of any event with respect to the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower described in clause (h) or (i) of this Article, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Parent Borrower, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent (it being understood that reference in this Article VIII to the Administrative Agent shall be deemed to include the Collateral Agent) as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Holdings, the Parent Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Parent Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Parent Borrower, a Subsidiary Term Borrower, a Foreign Subsidiary Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Parent Borrower, a Subsidiary Term Borrower or any Foreign Subsidiary Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers). Upon any such resignation, the Required Lenders shall have the right, in consultation with the Parent Borrower and, if applicable, the relevant Subsidiary Term Borrower and Foreign Subsidiary Borrower, to appoint a successor from among the Lenders. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers) to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers) and such successor. After the Administrative Agents resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.
The Lenders identified in this Agreement as the Syndication Agent and the Documentation Agents shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, none of the Syndication Agent or the Documentation Agents shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the Syndication Agent and the Documentation Agents as it makes with respect to the Administrative Agent or any other Lender in this Article VIII.
ARTICLE IX
Collection Allocation Mechanism
ARTICLE X
Miscellaneous
with a copy to
Jonathan A. Schaffzin, Esq.
Cahill Gordon & Reindel LLP
80 Pine Street
New York, New York
(Telecopy No. (212) 269-5420);
Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.
Exhibit 10.2
EXECUTION VERSION
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
among
TRIMAS CORPORATION,
THE SELLERS NAMED HEREIN,
as Sellers,
and
TSPC, INC.,
as Purchaser
Dated as of December 29, 2009
TABLE OF CONTENTS
|
Page |
|
|
|
|
ARTICLE I Definitions |
1 |
|
|
|
|
SECTION 1.01. |
Definitions |
1 |
SECTION 1.02. |
Other Terms |
1 |
SECTION 1.03. |
Computation of Time Periods |
1 |
|
|
|
ARTICLE II Purchase, Conveyance and Servicing of Receivables |
2 |
|
|
|
|
SECTION 2.01. |
Sales |
2 |
SECTION 2.02. |
Servicing of Receivables |
3 |
|
|
|
ARTICLE III Consideration and Payment; Reporting |
4 |
|
|
|
|
SECTION 3.01. |
Purchase Price |
4 |
SECTION 3.02. |
Payment of Purchase Price |
4 |
SECTION 3.03. |
Reports |
6 |
SECTION 3.04. |
Transfer of Records |
6 |
SECTION 3.05. |
Payments and Computations |
6 |
|
|
|
ARTICLE IV Representations and Warranties |
7 |
|
|
|
|
SECTION 4.01. |
Sellers Representations and Warranties |
7 |
SECTION 4.02. |
Reaffirmation of Representations and Warranties by the Sellers; Notice of Breach |
10 |
|
|
|
ARTICLE V Covenants of the Sellers |
11 |
|
|
|
|
SECTION 5.01. |
Covenants of the Sellers |
11 |
|
|
|
ARTICLE VI Dilutions |
17 |
|
|
|
|
SECTION 6.01. |
Dilutions, Etc. |
17 |
|
|
|
ARTICLE VII Conditions Precedent |
17 |
|
|
|
|
SECTION 7.01. |
Conditions Precedent |
17 |
SECTION 7.02. |
Conditions Precedent to the Addition of a Seller |
18 |
|
|
|
ARTICLE VIII Term and Termination |
20 |
|
|
|
|
SECTION 8.01. |
Term |
20 |
SECTION 8.02. |
Effect of Termination |
21 |
SECTION 8.03. |
Termination of Sellers and Seller Divisions |
21 |
|
|
|
ARTICLE IX Miscellaneous Provisions |
21 |
|
|
|
|
SECTION 9.01. |
Amendments, Etc. |
21 |
SECTION 9.02. |
Governing Law; Submission to Jurisdiction |
22 |
SECTION 9.03. |
Notices |
22 |
SECTION 9.04. |
Severability of Provisions |
23 |
SECTION 9.05. |
Assignment |
23 |
SECTION 9.06. |
Further Assurances |
23 |
SECTION 9.07. |
No Waiver; Cumulative Remedies |
24 |
SECTION 9.08. |
Counterparts |
24 |
SECTION 9.09. |
Binding Effect; Third-Party Beneficiaries |
24 |
SECTION 9.10. |
Merger and Integration |
24 |
SECTION 9.11. |
Headings |
24 |
SECTION 9.12. |
Exhibits |
24 |
SECTION 9.13. |
Addition of Sellers |
24 |
SECTION 9.14. |
Confidentiality |
24 |
SECTION 9.15. |
No Bankruptcy Petition Against the Purchaser |
25 |
SECTION 9.16. |
Waiver of Jury Trial |
25 |
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, dated as of December 29, 2009 (as amended, supplemented or otherwise modified and in effect from time to time, this Agreement), among TRIMAS CORPORATION, a Delaware corporation (TriMas Corp.), the subsidiaries of TriMas Corp. identified as Sellers on Schedule I, as sellers, (each, individually, a Seller and collectively, the Sellers), and TSPC, INC., a Nevada corporation, as purchaser (in such capacity, the Purchaser).
W I T N E S S E T H :
WHEREAS, the Purchaser desires to purchase from time to time certain accounts receivable existing on the Initial Incremental Transfer Date and thereafter until the Purchase Termination Date;
WHEREAS, the Sellers desire to sell and assign from time to time such certain accounts receivable to the Purchaser upon the terms and conditions hereinafter set forth;
WHEREAS, this Agreement amends and restates in its entirety that certain Receivables Purchase Agreement dated as of June 6, 2002 (as amended from time to time, the Existing Agreement) among TriMas Corp., Purchaser and each of the Sellers listed on Schedule I of the Existing Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed by and among the Purchaser and the Sellers as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. All capitalized terms used herein shall have the meanings specified herein or, if not so specified, the meaning specified in, or incorporated by reference into, Schedule A to the Receivables Transfer Agreement, dated as of the date hereof (as amended, supplemented or otherwise modified and in effect from time to time, the Receivables Transfer Agreement), by and among TSPC, Inc., as Transferor thereunder, TriMas Corp., individually, as Collection Agent and TriMas LLC, individually, as Guarantor thereunder, the several Purchasers named therein (hereinafter, the RTA Purchasers), and Wachovia Bank, National Association, as Administrative Agent thereunder.
SECTION 1.02. Other Terms. All accounting terms not specifically defined herein shall be construed in accordance with GAAP. All terms used in Article 9 of the Relevant UCC, and not specifically defined herein, are used herein as defined in such Article 9.
SECTION 1.03. Computation of Time Periods. Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word from means from and including and the words to and until each means to but
excluding, and the word within means from and excluding a specified date and to and including a later specified date.
ARTICLE II
Purchase, Conveyance and Servicing of Receivables
SECTION 2.01. Sales. (a) Upon the terms and subject to the conditions set forth herein, and without recourse (except such limited recourse as is specifically provided for in Sections 5.01(q) and 6.01), each of the Sellers hereby sells, assigns, transfers and conveys to the Purchaser, and the Purchaser hereby purchases from each of the Sellers, all of such Sellers right, title and interest, whether now owned or hereafter acquired and wherever located, in, to and under the Receivables outstanding on the Initial Incremental Transfer Date and thereafter owned by each of the Sellers, through any Purchase Termination Date, together with all Related Security and Collections with respect thereto (to the extent that such right, title and interest was not already purchased by the Purchaser) and all Proceeds of the foregoing. Such interest in the Receivables, expressed as a dollar amount, shall be equal to the aggregate unpaid balance of the Receivables from time to time. Any sale, assignment, transfer and conveyance hereunder does not constitute an assumption by the Purchaser of any obligations of the Sellers or any other Person to Obligors or to any other Person in connection with the Receivables or under any Related Security or any other agreement or instrument relating to the Receivables.
(b) In connection with such sale, each Seller authorizes the filing on the Initial Incremental Transfer Date, at its own expense, a financing statement or statements (Form UCC-1) with respect to the Receivables and the other property described in Section 2.01(a) sold by such Seller hereunder meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect and protect the interests of the Purchaser created hereby in the Receivables under the Relevant UCC against all creditors of, and purchasers from, such Seller, and to deliver either the originals of such financing statements or a file-stamped copy of such financing statements or other evidence of such filings to the Purchaser on the Initial Incremental Transfer Date.
(c) Each of the Sellers agrees that from time to time, at its expense, it will promptly execute and deliver all instruments and documents and take all actions as may be necessary or as the Purchaser may reasonably request in order to perfect or protect the interest of the Purchaser in the Receivables purchased hereunder or to enable the Purchaser to exercise or enforce any of its rights hereunder. Without limiting the foregoing, each Seller will, in order to accurately reflect this purchase and sale transaction, execute and file such financing or continuation statements or amendments thereto or assignments thereof (as permitted pursuant hereto) as may be requested by the Purchaser and mark its master data processing records (or related subledger) and other documents with a legend describing the purchase by the Purchaser of the Receivables and the interest transferred by the Purchaser to the Administrative Agent pursuant to the Receivables Transfer Agreement and stating Substantially all accounts receivable (including all Receivables as defined in the Amended and Restated Receivables Purchase Agreement dated as of December 29, 2009 (as amended or otherwise modified from time to time), among TriMas Corporation, a Delaware corporation, each of the Sellers listed on Schedule I thereto or added pursuant to an Additional Seller Supplement, and TSPC, Inc., a
Nevada corporation, as purchaser) have been sold to TSPC, Inc. and then transferred to Wachovia Bank, National Association, as Administrative Agent for various lenders. Details are available from Treasurer, TriMas Corporation, as Collection Agent, at telephone No. (248) 631-5400. The Sellers shall, upon request of the Purchaser, obtain such additional search reports as the Purchaser shall request. To the fullest extent permitted by applicable law, the Purchaser shall be permitted to sign and file continuation statements and amendments thereto and assignments thereof without the Sellers signatures. Carbon, photostatic or other reproduction of this Agreement or any financing statement shall be sufficient as a financing statement.
(d) It is the express intent of the Sellers, TriMas Corp, TriMas LLC and the Purchaser that the conveyance of the Receivables by the Sellers to the Purchaser pursuant to this Agreement be construed as a sale of such Receivables by the Sellers to the Purchaser. Further, it is not the intention of the Sellers and the Purchaser that such conveyance be deemed a grant of a security interest in the Receivables by the Sellers to the Purchaser to secure a debt or other obligation of the Sellers. The Sellers shall have no right or obligation hereunder to repurchase or otherwise reacquire any such Receivables. Except as otherwise provided in Sections 5.01(q) and 6.01 hereof, each sale of Receivables by the Sellers hereunder is made without recourse of any kind. However, in the event that, notwithstanding the intent of the parties, the Receivables are construed to constitute property of the Sellers, then (i) this Agreement shall be deemed to be, and hereby is declared to be, a security agreement within the meaning of the Relevant UCC; and (ii) the conveyances by each of the Sellers provided for in this Agreement shall be deemed to be, and each of the Sellers hereby grants to the Purchaser, a security interest in, to and under all of such Sellers right, title and interest in, to and under the Receivables outstanding on the Initial Incremental Transfer Date and thereafter owned by such Seller, together with all Related Security and Collections with respect thereto and all Proceeds of the foregoing, whether now owned or hereafter acquired and wherever located, to secure the rights of the Purchaser set forth in this Agreement or as may be determined in connection therewith by applicable law. Further, in the event that, notwithstanding the intent of the parties, the Receivables are construed to constitute property of the Sellers, each Seller and the Purchaser represent and warrant as to itself that each remittance of Collections by such Seller to the Purchaser hereunder will have been (i) in payment of a debt incurred by such Seller in the ordinary course of business or financial affairs of such Seller and the Purchaser and (ii) made in the ordinary course of business or financial affairs of such Seller and the Purchaser. The Sellers and the Purchaser shall, to the extent consistent with this Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Receivables, such security interest would be deemed to be a perfected security interest in favor of the Purchaser under applicable law and will be maintained as such throughout the term of this Agreement.
SECTION 2.02. Servicing of Receivables. The servicing, administering and collection of the Receivables shall be conducted by each of the Sellers, as agents of the Collection Agent, in accordance with the terms and conditions of the Receivables Transfer Agreement. Each Seller hereby agrees to perform, take or cause to be taken all such action as may be necessary or advisable to collect each Receivable from time to time, all in accordance with the terms and conditions of the Receivables Transfer Agreement, the Credit and Collection Policy and applicable laws, rules and regulations and with the care and diligence which each of the Sellers employs in servicing similar receivables for its own account. The Collection Agent hereby appoints each of the Sellers as its agent to enforce the Purchasers rights and interests in,
to and under the Receivables, the Related Security and the Collections with respect thereto. To the extent permitted by applicable law, each Seller hereby grants to any Collection Agent appointed under the Receivables Transfer Agreement and at any time following the designation of a Collection Agent other than TriMas Corp., any Seller or the Purchaser, to the Administrative Agent an irrevocable power of attorney to take in the Sellers name and on behalf of the Seller any and all steps necessary or desirable, in the reasonable determination of the Collection Agent or the Administrative Agent, to collect all amounts due under any and all Receivables, including, without limitation, endorsing the Sellers name on checks and other instruments representing Collections and enforcing such Receivables and the related Contracts. The Collection Agent and each of the Sellers shall hold in trust for the Purchaser, in accordance with its interests, all Records which evidence or relate to the Receivables or Related Security, Collections and Proceeds with respect thereto. Notwithstanding anything to the contrary contained herein, from and after the occurrence of a Termination Event or a Collection Agent Default, the Administrative Agent, upon written notice to the Collection Agent on behalf of the RTA Purchasers, shall have the absolute and unlimited right to terminate the Sellers servicing activities described in this Section 2.02. In consideration of the foregoing, while each Seller is acting as a sub-servicer hereunder, the Purchaser agrees to pay each Seller a servicing fee of 0.50% per annum on the aggregate Outstanding Balance of the Receivables sold by such Seller, payable monthly, for its performance of the duties and obligations described in this Section 2.02; provided that any such monthly payment shall be reduced by any amounts payable in such month by the RTA Purchasers to TriMas Corp., in its capacity as Collection Agent pursuant to the Receivables Transfer Agreement.
ARTICLE III
Consideration and Payment; Reporting
SECTION 3.01. Purchase Price. The purchase price for the Receivables and related property conveyed to the Purchaser by the Sellers under this Agreement (other than Receivables and related property contributed to the Purchaser pursuant to the penultimate sentence of Section 3.02(a)) on any Business Day shall be a dollar amount equal to (a) the product of (i) the aggregate Outstanding Balance of the Receivables sold on such Business Day and (ii) the then applicable Discount Percentage less (b) the amount of the deemed Collection not paid in cash by the Transferor to the Collection Agent pursuant to Section 2.10(a) of the Receivables Transfer Agreement (the Purchase Price).
SECTION 3.02. Payment of Purchase Price. (a) The Purchase Price for each Receivable sold hereunder on any Business Day shall be paid or provided for on the Business Day on which such sale occurred (i) by payment in immediately available funds to the extent the Purchaser has such funds available and (ii) to the extent such funds are not available, by increasing the amount due under the Subordinated Note by notation thereon; provided, however, that the aggregate outstanding principal amount of the Subordinated Note on any Business Day (after giving effect to all repayments thereof on or before such Business Day) shall not exceed the lesser of (x) 30% of the Outstanding Balance of the Receivables purchased hereunder existing on such Business Day and (y) an amount that would cause the Purchasers net worth (as defined in accordance with GAAP) to be less than $25,000,000. To the extent that the Purchaser does not have sufficient cash or availability under the Subordinated Note to pay the total
Purchase Price for Receivables sold on any Business Day in full, TriMas LLC may make or cause to be made a cash capital contribution to the Purchaser. No sales of Receivables shall be made hereunder on and after the Purchase Termination Date.
(b) All increases to the amount due under the Subordinated Note pursuant to Section 3.02(a)(ii) (each, an Advance) shall be evidenced by a single subordinated note, duly executed on behalf of the Purchaser, in substantially the form of Exhibit A annexed hereto, delivered on the Closing Date and payable to TriMas Corp., as agent for the Sellers (as amended, supplemented or otherwise modified and in effect from time to time, the Subordinated Note). The Collection Agent is hereby authorized by the Purchaser to endorse on the schedule attached to the Subordinated Note (or a continuation of such schedule attached thereto and made a part thereof) an appropriate notation evidencing the date and amount of each Advance, as well as the date and amount of each payment with respect thereto; provided, however, that the failure of any Person to make such a notation shall not affect any obligations of the Purchaser thereunder. Any such notation shall be conclusive and binding as to the date and amount of such Advance, or payment of principal or interest thereon, absent manifest error.
(c) The terms and conditions of the Subordinated Note and all Advances thereunder shall be as follows:
(i) Allocation of Advances. Advances shall be allocated among the Sellers pro rata according to the Purchase Price due to each Seller on the date such Advances are made.
(ii) Repayment of Advances. All amounts paid by the Purchaser with respect to the Advances shall be allocated first to the repayment of accrued interest until all such interest is paid, and then to the outstanding principal amount of the Advances. TriMas Corp. shall apply and distribute all payments of principal pro rata among the Sellers according to the outstanding Advances of each Seller. Subject to the provisions of this Agreement, the Purchaser may borrow, repay and reborrow Advances on and after the date hereof and prior to the termination of this Agreement, subject to the terms, provisions and limitations set forth herein.
(iii) Interest. The Subordinated Note shall bear interest from its date on the outstanding principal balance thereof at an initial rate per annum equal to 3.50%, adjusted on each Interest Payment Date (as defined therein) to an amount equal to the LMIR (as defined therein). Interest on each Advance shall be computed based on the number of days elapsed in a year of 360 days.
(iv) Sole and Exclusive Remedy; Subordination. The Purchaser shall be obligated to repay Advances to TriMas Corp., as agent for the Sellers, only to the extent of funds available to the Purchaser from Collections on the Receivables and, to the extent that such payments are insufficient to pay all amounts owing to the Sellers under the Subordinated Note, the Sellers shall not have any claim against the Purchaser for such amounts and no further or additional recourse shall be available against the Purchaser. The Subordinated Note shall be fully subordinated to any rights of the Administrative
Agent, on behalf of the RTA Purchasers pursuant to the Receivables Transfer Agreement, and shall not evidence any rights in the Receivables or related property.
(v) Offsets, etc. The Purchaser may offset any amount due and owing by the Sellers to the Purchaser against any amount due and owing by the Purchaser to TriMas Corp., as agent for the Sellers, under the terms of the Subordinated Note.
SECTION 3.03. Reports. Each Seller will furnish to the Collection Agent all information with respect to the Receivables sold by such Seller under this Agreement required by the Collection Agent in order to complete the Interim Reports and Monthly Reports delivered by the Collection Agent pursuant to the Receivables Transfer Agreement. Each delivery of an Interim Report or a Monthly Report by the Collection Agent shall be deemed to be a representation and warranty by each Seller that all information set forth in those reports with respect to the Receivables sold by such Seller under this Agreement and Collections thereof is true and correct.
SECTION 3.04. Transfer of Records. (a) In connection with the Purchase of Receivables hereunder, each of the Sellers hereby sells, transfers, and conveys to the Purchaser all of its right and title to and interest in the Records relating to all of its Receivables sold hereunder, without the need for any further documentation in connection with any Purchase. In connection with such transfer, each of the Sellers hereby grants to the Purchaser, the Collection Agent and the Administrative Agent an irrevocable, non-exclusive license to use without royalty or payment of any kind, all software used by such Seller to account for its Receivables, to the extent necessary to administer its Receivables, whether such software is owned by TriMas Corp. or is owned by others and used by TriMas Corp. under license agreements with respect thereto, provided that should the consent of any licensor to such grant of license described herein be required, each Seller agrees that upon the request of the Purchaser, the Collection Agent or the Administrative Agent, such Seller will use reasonable efforts to obtain the consent of such third- party licensor. The irrevocable license hereby granted shall terminate on the date when the Net Investment has been reduced to zero, all other Aggregate Unpaids have been paid in full and the Commitments have been terminated.
(b) Each Seller shall take such action as requested by the Purchaser, from time to time hereafter, that may be necessary or appropriate to ensure that the Purchaser and its assignees have an enforceable right to use all Records and all software used to account for the Receivables and/or recreate such records.
(c) The use of Records by the Purchaser is subject to Section 9.14 of this Agreement.
SECTION 3.05. Payments and Computations. All amounts due to be paid or deposited by the Purchaser hereunder shall be paid or deposited in accordance with the terms hereof on the day when due in immediately available funds to the account designated from time to time by the Sellers or as otherwise directed by the Sellers. In the event that any payment owed by any Person hereunder becomes due on a day that is not a Business Day, then such payment shall be made on the next succeeding Business Day. Except as otherwise provided in the Transaction Documents, any amount due hereunder that is not paid when due hereunder shall
bear interest at the Alternate Base Rate as in effect from time to time until paid in full; provided, however, that such interest rate shall not at any time exceed the maximum rate permitted by applicable law. All computations of interest payable hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first, but excluding the last) elapsed.
ARTICLE IV
Representations and Warranties
SECTION 4.01. Sellers Representations and Warranties. Each of the Sellers represents and warrants to the Purchaser as of the Closing Date and on each Business Day on which Receivables are sold hereunder:
(a) Corporate Existence and Power. Such Seller is a corporation or limited liability company duly organized, validly existing and in good standing under the laws of the state of its organization and has all requisite 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 have 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) Corporate and Governmental Authorization; Contravention. The execution, delivery and performance by such Seller of the Transaction Documents to which it is a party are within such Sellers corporate or limited liability company powers, have been duly authorized by all necessary corporate or limited liability company action, require no action by or in respect of, or filing with, any Official Body or official thereof (except for the filing of UCC financing statements as required by this Agreement), and do not contravene, or constitute a default under, any provision of applicable law, rule or regulation or of the Certificate of Incorporation or the By-Laws (or other organizational documents) of such Seller or of any agreement, judgment, injunction, order, writ, decree or other instrument binding upon the Seller or result in the creation or imposition of any Adverse Claim on the assets of such Seller (except those created by this Agreement and the Receivables Transfer Agreement).
(c) Binding Effect. 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, reorganization, fraudulent conveyance, moratorium or other similar laws affecting the rights of creditors and general equitable principles (whether considered in a proceeding in equity or at law).
(d) Valid and Perfected Security Interest. Each Receivable originated by such Seller has been transferred to the Purchaser free and clear of any Adverse Claim except as created hereby or by the other Transaction Documents and Permitted Originator Encumbrances. Without limiting the foregoing, such Seller has delivered to the Administrative Agent (as the Purchasers assignee) in form suitable for filing all financing statements or other similar
instruments or documents necessary under the UCC of all appropriate jurisdictions to perfect the Purchasers ownership interest in such Receivables and the Administrative Agents collateral assignment thereof. This Agreement creates a valid security interest in each such Receivable and its Related Security in favor of the Purchaser, and, upon filing of the financing statements described in the preceding sentence, together with UCC assignments delivered hereunder, such security interest will be a first priority perfected security interest.
(e) [Intentionally deleted].
(f) [Intentionally deleted]
(g) Quality of Title; Valid Sale.
(i) Immediately preceding the sale of the Receivables and Related Security pursuant to this Agreement, such Seller was the owner of all of the Receivables, free and clear of all liens, encumbrances, security interests, preferences or other security arrangements. Upon payment of the applicable Purchase Price for each Receivable in one or more of the manners permitted by this Agreement, the Purchaser will have irrevocably obtained all legal and equitable title to such Receivable and its Related Security, and the Purchaser has the legal right to sell and encumber, each such Receivable and its Related Security.
(ii) No financing statement or other instrument similar in effect covering any portion of the Receivables or Related Security is on file in any recording office except such as may be (A) filed in favor of a Seller in accordance with a Contract, (B) filed in favor of the Purchaser and its assigns in connection with this Agreement, (C) filed in favor of the Administrative Agent in accordance with the Receivables Transfer Agreement, (D) filed in connection with any lien arising solely as the result of any action taken by the Administrative Agent, (E) terminated or amended prior to the date hereof pursuant to the UCC termination statements or amendments delivered hereunder, or (F) filed by an unauthorized third party for which authenticated demand for termination has been made pursuant to UCC termination statements pursuant to UCC 9-513(c)(4).
(h) Accuracy of Information. All written information heretofore furnished by such Seller to the Purchaser, the Collection Agent and the Administrative Agent for purposes of or in connection with this Agreement, any other Transaction Document, or any transaction contemplated hereby or thereby is, and all such information hereafter furnished by such Seller to the Purchaser, the Collection Agent, the Administrative Agent, and the RTA Purchasers will be, true and accurate in every material respect, on the date such information is stated or certified.
(i) Tax Status. Such Seller has filed all material tax returns (Federal, state and local) required to be filed and has paid or made adequate provision for the payment of all material taxes, assessments and other similar governmental charges other than taxes contested in good faith and for which adequate reserves have been established in accordance with GAAP and taxes which are not yet due and payable.
(j) Litigation. Except as set forth in TriMas Corp.s 10-Q for the period ended September 30, 2009, there are no actions, suits or proceedings pending, or to the
knowledge of such Seller threatened, against or affecting such Seller or any Affiliate of such Seller or their respective properties, in or before any court, arbitrator or other Official Body, which could reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.
(k) Place of Business. The state and form of organization, principal place of business and chief executive office of such Seller are located at the address specified on Schedule I, and the offices where such Seller keeps all its Records, are located at the address specified on Schedule I, or such other locations notified to the Purchaser in accordance with this Agreement in jurisdictions where all action required by the terms of this Agreement has been taken and completed. As of the date hereof, such Seller is a registered organization (within the meaning of Section 9-102 of the UCC as in effect in its jurisdiction of organization).
(l) Reliance on Separate Legal Identity. Such Seller is aware that Administrative Agent is entering into the Transaction Documents in reliance upon the Purchasers identity as a legal entity separate from such Seller.
(m) Solvency. Such Seller is not insolvent, does not have unreasonably small capital with which to carry on its business, is able to pay its debts generally as they become due and payable, and its liabilities do not exceed its assets. TriMas Corp. is, and TriMas Corp. and its Subsidiaries are, on a consolidated basis, solvent.
(n) Tradenames, Etc. As of the date hereof: (i) Such Seller has only the subsidiaries and divisions listed on Exhibit I to the Receivables Transfer Agreement; and (ii) such Seller has, within the last five years, operated only under the tradenames identified on Exhibit I to the Receivables Transfer Agreement, and, within the last five (5) years, has not changed its name, merged with or into or consolidated with any other corporation or been the subject of any proceeding under Title 11, United States Code (Bankruptcy), except as disclosed in Exhibit I to the Receivables Transfer Agreement.
(o) Nature of Receivables. Each Receivable included in the calculation of the Net Receivables Balance in fact satisfies at such time the definition of Eligible Receivable and is an eligible asset as defined in Rule 3a-7 under the Investment Company Act of 1940, as amended, and is not a Defaulted Receivable.
(p) Credit and Collection Policy. With respect to the Receivables originated by such Seller, such Seller has complied in all material respects with its applicable Credit and Collection Policy.
(q) Collections and Sub-Servicing. Since the Closing Date, there has been no material adverse change in the ability of such Seller to sub-service and collect the Receivables.
(r) Binding Effect of Receivables and Contract. Each Receivable and related Contract constitutes a legal, valid and binding obligation of the Obligor, enforceable against the Obligor, subject to the effect of bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally and general equitable principles (whether considered in a proceeding at law or in equity).
(s) Not an Investment Company. Such Seller is not, nor is it controlled by, an investment company within the meaning of the Investment Company Act of 1940, as amended, and it is exempt from all provisions of such Act.
(t) ERISA. Such Seller and its ERISA Affiliates and any employee benefit plan (as such term is defined in Section 3(3) of ERISA) established by such Seller, including any such plan that is subject to Section 412 of the Internal Revenue Code or Title IV of ERISA, are in compliance with ERISA, except for any noncompliance which would not reasonably be expected to have a Material Adverse Effect, and no lien exists in favor of the Pension Benefit Guaranty Corporation on any of the Receivables.
(u) Lock-Box Accounts. The names and addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts at such Lock-Box Banks, are specified in Exhibit B to the Receivables Transfer Agreement. All Obligors have been instructed to pay all Collections to a Lock-Box Account.
(v) Bulk Sales. No transaction contemplated by this Agreement requires compliance with any bulk sales act or similar law.
(w) Reasonably Equivalent Value. The Purchase Price constitutes reasonably equivalent value in consideration for the transfer by each Seller to the Purchaser of Receivables from such Seller pursuant to this Agreement and no such transfer has been made for or on account of an antecedent debt owed by such Seller to the Purchaser, and no such transfer is or may be voidable or subject to avoidance under any section of the Bankruptcy Code.
(x) Regulations T, U and X. No proceeds of the sales of Receivables under this Agreement will be used by the Seller to acquire any security in any transaction which violates Regulation T, U or X of the Federal Reserve Board. Such Seller is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Federal Reserve Board), or extending credit for the purpose of purchasing or carrying margin stock.
(y) OFAC. Neither such Seller nor any of its Subsidiaries or Affiliates (a) is a Sanctioned Person, (b) does business in a Sanctioned Country or with a Sanctioned Person in violation of the economic sanctions of the United States administered by OFAC or (c) does business in such country or with any such agency, organization or person, in violation of the economic sanctions of the United States administered by OFAC.
SECTION 4.02. Reaffirmation of Representations and Warranties by the Sellers; Notice of Breach. On the Closing Date and on each Business Day on which Receivables are sold hereunder, the Sellers, by accepting the proceeds of such sale, shall be deemed to have certified that all representations and warranties described in Section 4.01 are true and correct in all material respects on and as of such day as though made on and as of such day except to the extent such representations and warranties expressly relate to an earlier date. The representations and warranties set forth in Section 4.01 shall survive (i) the conveyance of the Receivables to the Purchaser, (ii) the termination of the rights and obligations of the Purchaser and the Sellers under this Agreement and (iii) the termination of the rights and obligations of the
Transferor, the Guarantor and the Sellers under the Receivables Transfer Agreement. Upon the coming to the knowledge of any Responsible Officer of the Purchaser or any of the Sellers of a breach of any of the foregoing representations and warranties, the party with knowledge of such breach shall give prompt written notice to the other within three (3) Business Days of such discovery.
ARTICLE V
Covenants of the Sellers
SECTION 5.01. Covenants of the Sellers. Each of the Sellers hereby covenants and agrees with the Purchaser that, unless otherwise specified herein, for so long as this Agreement is in effect, and until all Receivables which have been sold to the Purchaser pursuant hereto, shall have been paid in full or written-off as uncollectible, and all amounts owed by the Sellers pursuant to this Agreement have been paid in full, unless the Purchaser, the Administrative Agent and the Required Purchasers otherwise consent in writing, as follows:
(a) Conduct of Business. Such Seller will, and will cause each of its controlled Affiliates to, carry on and conduct its business in substantially the same manner and in substantially the same fields of enterprise as it is presently conducted and businesses reasonably related thereof and do all things necessary to remain duly organized, validly existing and in good standing in its jurisdiction of organization and will maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted except where the failure to be so qualified or in good standing would not have a Material Adverse Effect.
(b) Compliance with Laws. Such Seller will, and will cause each of its Affiliates to, comply in all material respects with all laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject, except to the extent that the failure to comply with such laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards would not materially adversely affect the ability of such Seller to perform its obligations under this Agreement.
(c) Furnishing of Information and Inspection of Records. Such Seller will furnish to the Purchaser from time to time such information with respect to itself or the Receivables as the Purchaser may reasonably request, including, without limitation, listings identifying the Obligor and the Outstanding Balance for each Receivable. Such Seller will at any time and from time to time during regular business hours, upon reasonable notice (it being agreed that one Business Days notice shall be reasonable when a Termination Event or Potential Termination Event has taken place and is continuing), and at the Purchasers expense, permit the Purchaser, its agents or representatives or such other individuals as the Purchaser may reasonably request, (i) to examine and make copies of and abstracts from all Records and (ii) to visit the offices and properties of such Seller for the purpose of examining such Records, and to discuss matters relating to Receivables or such Sellers performance hereunder with any of the officers or employees of such Seller having knowledge of such matters.
(d) Keeping of Records and Books of Account. Such Seller will maintain a system of accounting established and administered in accordance with generally accepted
accounting principles, consistently applied, and will maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate records evidencing Receivables in the event of the destruction of the originals thereof), and keep and maintain, or obtain, as and when required, all documents, books, records and other information reasonably necessary or advisable for the collection of all Receivables (including, without limitation, records adequate to permit the daily identification of each Receivable and all Collections of and adjustments to each existing Receivable). Such Seller will keep such records (and, to the extent that any of the foregoing constitute instruments, chattel paper or negotiable documents, all originals thereof), at an address listed on Schedule I hereto. Such Seller will give the Purchaser prompt notice of any change in the administrative and operating procedures referred to in the previous sentence to the extent such change could reasonably be expected to have a Material Adverse Effect.
(e) 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.
(f) Credit and Collection Policies. Such Seller will comply in all material respects with the Credit and Collection Policy in regard to each Receivable and the related Contract.
(g) Collections. Such Seller shall instruct all Obligors to cause all Collections to be deposited directly to a Lock-Box Account.
(h) Collections Received. As of and subsequent to the Initial Incremental Transfer Date, such Seller shall hold in trust for the Purchaser, and deposit immediately (and in any event within one Business Day) after receipt thereof to a Lock-Box Account all Collections received from time to time by such Seller. Such Seller shall prevent the deposit of any funds other than Collections into any of the Lock-Box Accounts and, to the extent that any such funds are nevertheless deposited into any of such Lock-Box Accounts, promptly (and in any event within one Business Day) identify any such funds to the Collection Agent for segregation and remittance to the owner thereof. If such Seller or any of its agents or representatives or Affiliates shall at any time receive any cash, checks or other instruments constituting Collections, such recipient shall segregate such payments and hold such payments in trust for the Purchaser and shall, promptly upon receipt (and in any event within one Business Day following receipt), remit all such collections, duly endorsed or with duly executed instruments of transfer, to a Lock-Box Account.
(i) Sale Treatment. 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.
(j) No Sales, Liens, Etc. Except as otherwise provided herein, such Seller will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any Adverse Claim upon (except for the filing of any financing statement as required under
this Agreement) or with respect to, any Receivable, Related Security or Collections or upon or with respect to any Lock-Box Account to which any Collections of any Receivable are sent, or, in each case, assign any right to receive income in respect thereof, other than Permitted Originator Encumbrances.
(k) No Extension or Amendment of Receivables. Such Seller will not extend, amend or otherwise modify the terms of any Receivable, or amend, modify or waive any term or condition of any Contract related thereto in a manner which adversely affects the amount or collectability of any Receivable, except as provided in Section 2.02 hereof or in the Receivables Transfer Agreement, without the prior written consent of the Purchaser.
(l) No Change in Credit and Collection Policy. Except as provided in the Receivables Transfer Agreement or as approved by the Administrative Agent acting at the direction of the Required Purchasers, such Seller will not make any change in the Credit and Collection Policy, which change might impair such Sellers ability to collect the Receivables, considered as a whole, in any material respect. Such Seller agrees to provide to the Purchaser and Administrative Agent not less than 30 days prior written notice of any material change in such Sellers Credit and Collection Policy (together with a copy of such proposed change).
(m) No Mergers, Etc. Such Seller will not (i) consolidate or merge with or into any other Person other than another Seller, or (ii) sell, lease or transfer all or substantially all of its assets to any other Person other than another Seller; provided that such Seller may merge with another Person if such Seller (or another Seller) is the surviving entity and such merger or consolidation does not cause a Termination Event or Potential Termination Event under Section 7.01(h) of the Receivables Transfer Agreement.
(n) Change in Payment Instructions to Obligors; Deposits to Lock-Box Accounts. Such Seller will not add or terminate, or make any change to, any Lock-Box Account, except in accordance with the Receivables Transfer Agreement. Such Seller will not deposit or otherwise credit, or cause or permit to be so deposited or credited, to any Lock- Box Account, cash or cash proceeds other than Collections of Receivables.
(o) Change of Name, Etc. As of and subsequent to the Initial Incremental Transfer Date, such Seller shall not change its name, jurisdiction of organization, form of organization, taxpayer identification number or state organization number, unless at least ten (10) days prior to the effective date of any such change such Seller delivers to the Purchaser and the Administrative Agent (i) financing statements under the Relevant UCC, executed by such Seller, necessary to reflect such change and to continue the perfection of the Purchasers interest in the Receivables and (ii) new or revised Lock-Box Account Agreements which reflect such change and enable the Administrative Agent, on behalf of the RTA Purchasers, to exercise its rights under the Transaction Documents.
(p) Separate Existence. Such Seller shall:
(i) Maintain its deposit account or accounts, separate from those of the Purchaser and use its commercially reasonable efforts to ensure that its funds will not
be diverted to the Purchaser and that its funds and assets will not be commingled with those of the Purchaser;
(ii) To the extent that it shares any officers or other employees with the Purchaser, fairly allocate between it and the Purchaser the salaries of and the expenses related to providing benefits to such officers and other employees, and such Seller and the Purchaser shall bear their respective 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, fairly allocate between it and the Purchaser the costs incurred in so doing, and it and the Purchaser shall bear their fair shares of such costs; and to the extent that it contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of the Purchaser, the costs incurred in so doing shall be fairly allocated between it and the Purchaser in proportion to the benefit of the goods or services each is provided, and such Seller and the Purchaser shall bear their fair shares of such costs;
(iv) Enter into all material transactions with the Purchaser, whether currently existing or hereafter entered into, only on an arms length basis, it being understood and agreed that the transactions contemplated in the Transaction Documents meet the requirements of this clause (iv);
(v) Maintain office space separate from the office space of the Purchaser (but which may be located at the same address as the Purchaser). To the extent that it and the Purchaser have offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses subject to a written sublease agreement;
(vi) Conduct its affairs strictly in accordance with its certificate of incorporation and observe all necessary, appropriate and customary corporate formalities, including, but not limited to, holding all regular and special stockholders and directors meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(vii) Not assume or guarantee any of the liabilities of the Purchaser;
(viii) Take, or refrain from taking, as the case may be, all other actions that are necessary to be taken or not to be taken in order (x) to ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to it (and, to the extent within its control, to ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to the Purchaser) and (y) to comply with those procedures described in such provisions that are applicable to it;
(ix) Maintain its books of account, financial reports and corporate records of such Seller separately from those of TriMas Corp. and each other Affiliate of such Seller;
(x) Cause its accounting records and the published financial statements to clearly show that, for accounting purposes, the Receivables and Related Security have been sold to the Purchaser;
(xi) Maintain its assets in a manner that facilitates their identification and segregation from those of TriMas Corp., the other Sellers, the Purchaser and other Affiliates of TriMas Corp.;
(xii) Not, directly or indirectly, name the Purchaser or enter into any agreement to name the Purchaser a direct or contingent beneficiary or loss payee or any insurance policy covering the property of such Seller; and
(xiii) Not be, nor will hold itself out to be, responsible for the debts of the Purchaser or the decisions or actions in respect of the daily business and affairs of the Purchaser and immediately correct any known misrepresentation with respect to the foregoing. Such Seller, the Purchaser and their Affiliates will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.
(q) Indemnification. Such Seller agrees to indemnify, defend and hold the Purchaser harmless from and against any and all losses, liabilities, damages, judgments, claims, deficiencies, costs, disbursements and expenses including, without limitation, interest, penalties, reasonable attorneys fees and amounts paid in settlement) to which the Purchaser may become subject insofar as such losses, liabilities, damages, judgments, claims, deficiencies, costs, disbursements or expenses arise out of or are based upon a breach by such Seller of its representations, warranties and covenants contained herein, or any information certified in any schedule or certificate delivered by any of the Sellers hereunder or in connection with the Transaction Documents, being untrue in any material respect at any time; provided that in no event shall this Section 5.01(q) be construed to include uncollectibility of any Receivable for credit-related reasons pertaining to the related Obligor. The obligations of such Seller under this Section 5.01(q) shall be considered to have been relied upon by the Purchaser and the Administrative Agent, on behalf of the RTA Purchasers, and shall survive the execution, delivery, performance and termination of this Agreement for a period of three (3) years following the Purchase Termination Date, regardless of any investigation made by the Purchaser or the Administrative Agent or on behalf of either of them.
It is expressly understood and agreed by the parties (i) that the foregoing indemnification is not intended to, and shall not constitute a guarantee of the collectability or payment of the Receivables and (ii) that nothing in this Section 5.01(q) shall constitute recourse (except as otherwise specifically provided in this Agreement) for (a) uncollectible Receivables or other obligations hereunder or related costs or expenses resulting from such indemnified Persons gross negligence or willful misconduct, (b) any franchise taxes owed by such indemnified Person or (c) any other taxes imposed against such indemnified Person on account of its ownership of
the Receivables to the extent such taxes are measured by or against the gross or net income or receipts of such Person.
(r) ERISA. (i) 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) permit to exist any accumulated funding deficiency (as defined in Section 302(a) of ERISA and Section 412(a) of the Code) or funding deficiency with respect to any Benefit Plan other than a Multiemployer Plan; (c) fail to make any payments to any Multiemployer Plan that 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; (D) terminate any Benefit Plan so as to result in any liability to the Pension Benefit Guaranty Corporation; or (E) permit to exist any occurrence of any reportable event described in Title IV of ERISA which represents a material risk of a liability to such Seller, or any ERISA Affiliate of such Seller under ERISA or the Code, if such prohibited transactions, accumulated funding deficiencies, failure to make payments, terminations and reportable events occurring within any fiscal year of such Seller, in the aggregate, involve a payment of money or an incurrence of liability by such Seller or any ERISA Affiliate of such Seller, in an amount which would reasonably be expected to have a Material Adverse Effect and (ii) such Seller shall promptly give the Purchaser written notice upon becoming aware that such Seller is not in compliance with ERISA if such non compliance would reasonably be expected to have a Material Adverse Effect or that any ERISA lien on any of the Receivables exists and, promptly after the receipt or filing thereof, shall provide the Purchaser with copies of all reports and notices with respect to any reportable event (as defined in Article IV of ERISA) which such Seller or any ERISA Affiliate thereof files under ERISA with the Internal Revenue Service, the Pension Benefit Guaranty Corporation or the U.S. Department of Labor or which such Seller or any ERISA Affiliate thereof receives from the Internal Revenue Service, the Pension Benefit Guaranty Corporation or the U.S. Department of Labor.
(s) Amendments to Credit Agreement. Such Seller agrees not to amend the Credit Agreement without the Purchasers consent.
(t) Proceedings. Such Seller agrees to furnish to the Purchaser and the Administrative Agent, as the Purchasers assignee, prompt notice of the filing or commencement of any action, suit or proceeding by or before any arbitrator or Official Body against or affecting such Seller which, if adversely determined, could reasonably be expected to have a Material Adverse Effect.
(u) Taxes. Such Seller will file or cause to be filed reports required by law to be filed by it and will promptly pay or cause to be paid all taxes and governmental charges at any time owing, except any such taxes which are not yet delinquent or are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books or to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect.
ARTICLE VI
Dilutions
SECTION 6.01. Dilutions, Etc. Each Seller agrees that if on any Business Day the Outstanding Balance of a Receivable, an interest in which has been sold by such Seller hereunder, is either (x) reduced as a result of defective, rejected or returned goods or other dilution factor, any billing adjustment or other adjustment, or (y) reduced or canceled as a result of (i) a setoff or dispute in respect of any claim by any Person (whether such claim arises out of the same or a related transaction or an unrelated transaction), or (ii) any action by any Federal or state taxing authority or as a result of the payment by any Obligor of any portion of a Receivable constituting a tax or governmental fee or charge to any Person other than the Purchaser, then such Seller shall be deemed to have received on such day a collection of such Receivable in the amount of such reduction, cancelation or payment made by the Obligor and shall on such day pay to the Purchaser an amount equal to such reduction or cancelation (to the extent not netted against the Purchase Price on such day pursuant to Section 3.01 hereof) on each Business Day of the calendar month in which such reduction or cancelation occurred.
ARTICLE VII
Conditions Precedent
SECTION 7.01. Conditions Precedent. The obligations of the Purchaser to purchase the Receivables on the Closing Date and on any Business Day on which Receivables are sold hereunder shall be subject to the satisfaction of the following conditions:
(a) All representations and warranties of the Sellers contained in this Agreement shall be true and correct on the Closing Date and on the applicable Business Day of sale, with the same effect as though such representations and warranties had been made on such date;
(b) All information concerning the Receivables provided to the Purchaser shall be true and correct in all material respects as of the Closing Date, in the case of any Receivables sold on the Closing Date, or the date such Receivables are created, in the case of any Receivables created after the Closing Date and sold by the Sellers to the Purchaser on a subsequent Business Day;
(c) Each of the Sellers shall have substantially performed all other obligations required to be performed by the provisions of this Agreement and the other Transaction Documents to which it is a party;
(d) The Sellers shall have either filed or caused to be filed the financing statement(s) required to be filed pursuant to Section 2.01(b);
(e) On the Closing Date, all corporate and legal proceedings, and all instruments in connection with the transactions contemplated by this Agreement and the other Transaction Documents shall be satisfactory in form and substance to the Purchaser, and the Purchaser shall have received from the Sellers copies of all documents (including, without
limitation, records of corporate proceedings) relevant to the transactions herein contemplated as the Purchaser may reasonably have requested;
(f) On the Closing Date, the Sellers shall deliver to the Purchaser and the Administrative Agent a statement of the aggregate Outstanding Balance of the Receivables in existence as of the close of business on the second Business Day prior to the Closing Date; and
(g) The Purchase Termination Date shall not have occurred.
SECTION 7.02. Conditions Precedent to the Addition of a Seller. The obligation of the Purchaser to purchase Receivables and Related Security hereunder from a Subsidiary of TriMas Corp. requested to be an additional Seller pursuant to Section 9.13 is subject to the conditions precedent that the Purchaser shall have received the following items on or before the date designated for the addition of such Seller (the Seller Addition Date) and in form and substance satisfactory to the Purchaser:
(a) Additional Seller Supplement. An Additional Seller Supplement substantially in the form of Exhibit B attached hereto (with a copy for the Administrative Agent and each RTA Purchaser) duly executed and delivered by such Seller;
(b) Secretarys Certificate. A certificate of the Secretary or an Assistant Secretary of such Seller, dated the related Seller Addition Date, and certifying (i) that attached thereto is a true and complete copy of the by-laws (or similar organizational documents) of such Seller, as in effect on the Seller Addition Date and at all times since a date prior to the date of the resolutions described in clause (ii) below, (ii) that attached thereto is a true and complete copy of the resolutions, in form and substance reasonably satisfactory to the Purchaser, of the Board of Directors (or other governing body or Person) of such Seller or committees thereof authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents to which it is a party and the transactions contemplated hereby and thereby, and that such resolutions have not been amended, modified, revoked or rescinded and are in full force and effect, (iii) that the articles of incorporation (or similar organizational documents) of such Seller have not been amended since the date of the last amendment thereto shown on the certificate of good standing (or its equivalent) furnished pursuant to subsection (e) below and (iv) as to the incumbency and specimen signature of each officer executing the Additional Seller Supplement and any other Transaction Documents or any other document delivered in connection therewith on behalf of such Seller (on which certificates the Purchaser may conclusively rely until such time as the Purchaser shall receive from such Seller a revised certificate with respect to such Seller meeting the requirements of this subsection (b));
(c) Officers Certificate. A Certificate of a Responsible Officer of TriMas Corp., dated the related Seller Addition Date, and certifying such Seller is in the same or a related line of business as the existing Sellers as of the related Seller Addition Date;
(d) Corporate Documents. The organizational documents, including all amendments thereto, of such Seller, certified as of a recent date by the Secretary of State or other appropriate authority of the state of incorporation, as the case may be;
(e) Good Standing Certificates. Certificates of compliance, of status or of good standing, dated as of a recent date, from the Secretary of State or other appropriate authority of such jurisdiction, with respect to such Seller in each State where the ownership, lease or operation of property or the conduct of business requires it to qualify as a foreign corporation, except where the failure to so qualify would not have a Material Adverse Effect;
(f) Consents, Licenses, Approvals, Etc. A certificate dated the related Seller Addition Date of a Responsible Officer of such Seller either (i) attaching copies of all consents (including, without limitation, consents under loan agreements and indentures to which any Seller or its Affiliates are parties), licenses and approvals required in connection with the execution, delivery and performance by such Seller of the Additional Seller Supplement and the validity and enforceability of the Additional Seller Supplement against such Seller, and such consents, licenses and approvals shall be in full force and effect or (ii) stating that no such consents, licenses and approvals are so required;
(g) No Litigation. Confirmation that there is no pending or, to its knowledge after due inquiry, threatened action or proceeding affecting such Seller or any of its Subsidiaries before any Official Body that could reasonably be expected to have a Material Adverse Effect;
(h) Lock-Boxes. A Lock-Box Account with respect to Receivables to be sold by such Seller shall have been established in the name of the Purchaser, each invoice issued to an Obligor on and after the related Seller Addition Date shall indicate that payments in respect of its Receivable shall be made by such Obligor to a Lock-Box Account or by wire transfer or other electronic payment to a Lock-Box Account or the Collection Account and the Collection Agent shall have delivered with respect to each Lock-Box Account a Lock-Box Agreement signed by the Purchaser, the Administrative Agent and the applicable Lock-Box Bank;
(i) UCC Certificate; UCC Financing Statements. Executed copies of such proper financing statements (or other similar instruments), filed and recorded at such Sellers 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 Purchasers ownership interest in all Receivables and Related Security under the UCC or any comparable law of such jurisdiction;
(j) UCC Searches. Written search reports, listing all effective financing statements (or other similar instruments) that name such Seller as debtor or assignor and that are filed in the jurisdictions in which filings were made pursuant to subsection (i) above and in any other jurisdictions that the Purchaser (or any of its assignees) determines are necessary or appropriate, together with copies of such financing statements (none of which, except for those described in subsection (i) above, shall cover any Receivables or Related Security), and tax and judgment lien searches showing no liens that are not permitted by the Transaction Documents;
(k) List of Obligors. A microfiche, typed or printed list or other tangible evidence reasonably acceptable to the Purchaser showing, as of a date acceptable to the Purchaser prior to the related Seller Addition Date, the Obligors whose Receivables are to be
transferred to the Purchaser and the balance of the Receivables with respect to each such Obligor as of such date;
(l) Back-up Servicing Arrangements. Evidence that such Seller maintains disaster recovery systems or back-up computer or other information management systems that, in the Purchasers and the Administrative Agents reasonable judgment, are sufficient to protect such Sellers business against material interruption or loss or destruction of its primary computer and information management systems;
(m) Systems. Evidence, reasonably satisfactory to the Purchaser and the Administrative Agent, that such additional Sellers systems, procedures and record keeping relating to the Receivables remain in all material respects sufficient and satisfactory in order to permit the purchase and administration of the Receivables in accordance with the terms and intent of this Agreement;
(n) Opinions. The Purchaser shall have received (i) legal opinions on behalf of such Seller as to general corporate matters (including an opinion as to the perfection and priority of the Purchasers interest in the Receivables) and (ii) a certificate from a Responsible Officer of such Seller stating that the Specified Bankruptcy Opinion Provisions are also true and correct as to such Seller as of the Seller Addition Date, all in form and substance reasonably satisfactory to the Administrative Agent and the RTA Purchasers; and
(o) Other. Such other approvals or documents as the Purchaser (or any of its assignees) may reasonably request from such additional Seller, including, but not limited to, a pro-forma Deposit Report and Settlement Statement incorporating the receivables data for at least the most recent fourteen (14) months of such additional Seller.
ARTICLE
VIII
Term and Termination
SECTION 8.01. Term. This Agreement shall commence as of the first day on which all of the conditions precedent as set out in Section 7.01 have been satisfied and shall continue in full force and effect until the earlier of (i) the date designated by the Purchaser or the Sellers as the Purchase Termination Date at any time following ten (10) days written notice to the other (with a copy thereof to the Administrative Agent), (ii) the date on which the Administrative Agent, on behalf of the RTA Purchasers, declares a Termination Event pursuant to the Receivables Transfer Agreement, (iii) upon the occurrence of an Event of Bankruptcy with respect to either the Purchaser or any of the Sellers or (iv) the date on which either the Purchaser or any of the Sellers becomes unable for any reason to purchase or repurchase, respectively, any Receivable in accordance with the provisions of this Agreement or defaults on its obligations hereunder, which default continues unremedied for more than ten (10) days after written notice to the defaulting party (any such date being a Purchase Termination Date); provided, however, that the termination of this Agreement pursuant to this Section 8.01 hereof shall not discharge any Person from any obligations incurred prior to such termination or any obligations under Articles V or VI with respect to Receivables arising prior to such termination, including,
without limitation, any obligations to make any payments with respect to any Receivable sold prior to such termination.
SECTION 8.02. Effect of Termination. Following the termination of this Agreement pursuant to Section 8.01, the Sellers shall not sell, and the Purchaser shall not purchase, any Receivables. No termination, rejection or failure to assume the executory obligations of this Agreement in any Event of Bankruptcy with respect to the Sellers or the Purchaser shall be deemed to impair or affect the obligations pertaining to any executed sale or executed obligations, including, without limitation, pre-termination breaches of representations and warranties by the Sellers or the Purchaser. Without limiting the foregoing, prior to termination, the failure of the Sellers to deliver computer records of Receivables or any reports regarding the Receivables shall not render such transfer or obligation executory, nor shall the continued duties of the parties pursuant to this Agreement render an executed sale executory.
SECTION 8.03. Termination of Sellers and Seller Divisions. (a) TriMas Corp. hereby covenants and agrees with the Purchaser that TriMas Corp. shall not permit any Seller at any time to cease to be a wholly-owned Subsidiary of TriMas Corp., except as provided in the following paragraph (b).
(b) If TriMas Corp. wishes to permit any Seller to cease to be a wholly-owned Subsidiary of TriMas Corp. or terminate the sales of Receivables hereunder by any Seller or Seller Division, then TriMas Corp. shall submit a request (a Seller Termination Request) to such effect in writing to the Purchaser, which request shall be accompanied by a certificate prepared by a Responsible Officer of the Collection Agent indicating the Purchased Receivables Percentage applicable to such Seller (or Seller Division) as of the date of submission of such request (the Seller Termination Request Date). Subject to the terms and provisions hereof and of the Receivables Transfer Agreement, the relevant Seller (or Seller Division) shall be terminated as a Seller (or Seller Division) hereunder immediately upon the earlier of the date set forth in the Seller Termination Request or the consummation of the transaction in connection with which such Seller ceases to be a wholly-owned Subsidiary of TriMas Corp. or in the case of a Seller Division upon the satisfaction of any applicable conditions in the Receivables Transfer Agreement. From and after the date any such Seller (or Seller Division) is terminated as a Seller (or Seller Division) pursuant to this subsection, the Seller (or Seller Division) shall cease selling, and the Purchaser shall cease buying, Receivables and Related Security from such Seller (or Seller Division) and a Purchase Termination Date shall be deemed to have occurred, but only with respect to such Seller (or Seller Division).
(c) A terminated Seller (or Seller Division) shall have no further obligation under any Transaction Document, other than pursuant to Sections 5.01(q) and 6.01 of this Agreement, with respect to Receivables previously sold by it to the Purchaser.
ARTICLE
IX
Miscellaneous Provisions
SECTION 9.01. Amendments, Etc. This Agreement and the rights and obligations of the parties hereunder may not be amended, supplemented, waived or otherwise modified and
no consent to any such amendment, supplement, waiver or modification may be given except in an instrument in writing signed by the Purchaser and the Sellers and consented to in writing by the Administrative Agent (with the consent of the Required Purchasers).
SECTION 9.02. Governing Law; Submission to Jurisdiction. (a) This Agreement shall be governed by and construed in accordance with the laws of the State of New York except to the extent that the validity or perfection of the Purchasers ownership of or security interest in the Receivables, or remedies hereunder in respect thereof, are governed by the laws of a jurisdiction other than the State of New York. (b) The parties hereto hereby submit to the nonexclusive jurisdiction of the United States District Court for the Southern District of New York and of any New York state court sitting in The City of New York for purposes of all legal proceedings arising out of or relating to this agreement or the transactions contemplated hereby. Each party hereto hereby irrevocably waives, to the fullest extent it may effectively do so, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. Nothing in this Section 9.02 shall affect the right of the Purchaser to bring any other action or proceeding against any of the Sellers or its property in the courts of other jurisdictions.
SECTION 9.03. Notices. (a) All demands, notices and communications hereunder shall be in writing and shall be deemed to have been duly given if personally delivered at or mailed by registered mail, return receipt requested, or telecopied to:
(a) in the case of the Purchaser:
TSPC, Inc.
2520 Saint Rose Parkway, Suite 212
Henderson, NV 89074-7787
Attention: Michael DeWinter
Telecopy: (702) 925-3905
with copies to:
Comptroller and General Counsel
39400 Woodward Avenue Suite 130
Bloomfield Hills, MI 48304
Telephone: (248) 631-5400
and
Douglas Horowitz
Cahill Gordon & Reindel LLP
80 Pine Street
New York, NY 10005
Telecopy: (212) 269-5420
(b) in the case of the Sellers to the address set forth on Schedule I; and
in each case, with a copy to:
Wachovia Bank, National Association,
as Administrative Agent
c/o Wells Fargo Securities, LLC
6 Concourse Parkway, Suite 1450
Atlanta, GA 30328
Attn: Eero Maki
Phone: 404/732-0821
Fax: 404/732-0801
or, as to each party, at such other address as shall be designated by such party in a written notice to each other party.
(b) Notices and communications by facsimile shall be effective upon receipt.
SECTION 9.04. Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall for any reason whatsoever be held invalid, then such covenants, agreements, provisions, or terms shall be deemed severable from the remaining covenants, agreements, provisions, or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement.
SECTION 9.05. Assignment. This Agreement may not be assigned by the parties hereto, except that the Purchaser may assign its rights hereunder pursuant to the Receivables Transfer Agreement to the Administrative Agent for the benefit of the RTA Purchasers as security for the Purchasers repayment obligations under the Receivables Transfer Agreement. The Purchaser hereby notifies the Sellers, and the Sellers hereby acknowledge and agree, that the Purchaser, pursuant to the Receivables Transfer Agreement, has assigned its rights (but not its obligations) hereunder to the Administrative Agent for the benefit of the RTA Purchasers and that the representations, warranties, covenants and agreements of the Sellers contained in this Agreement and the rights, powers and remedies of the Purchaser under this Agreement are intended to benefit the RTA Purchasers and will be directly enforceable by the Administrative Agent on their behalf. All rights, powers and remedies of the Purchaser hereunder may be exercised by the Administrative Agent to the extent of its rights hereunder and under the other Transaction Documents.
SECTION 9.06. Further Assurances. The Purchaser and the Sellers agree to do and perform, from time to time, any and all acts and to execute any and all further instruments required or reasonably requested by the other party more fully to effect the purposes of this Agreement and the other Transaction Documents, including, without limitation, the execution of any financing statements or continuation statements or equivalent documents relating to the Receivables for filing under the provisions of the Relevant UCC or other laws of any applicable jurisdiction.
SECTION 9.07. No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Purchaser, the Sellers or the Administrative Agent, any right, remedy, power or privilege hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exhaustive of any rights, remedies, powers and privilege provided by law.
SECTION 9.08. Counterparts. (a) This Agreement may be executed in two or more counterparts thereof (and by different parties on separate counterparts), each of which shall be an original, but all of which together shall constitute one and the same instrument. (b) Delivery of an executed counterpart of a signature page to this Agreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.09. Binding Effect; Third-Party Beneficiaries. This Agreement and the other Transaction Documents will inure to the benefit of and be binding upon the parties hereto and their respective successors, transferees and permitted assigns. The RTA Purchasers and the Administrative Agent are each intended by the parties hereto to be third-party beneficiaries of this Agreement.
SECTION 9.10. Merger and Integration. Except as specifically stated otherwise herein, this Agreement and the other Transaction Documents set forth the entire understanding of the parties relating to the subject matter hereof, and all prior understandings, written or oral, are superseded by this Agreement and the other Transaction Documents.
SECTION 9.11. Headings. The headings herein are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof.
SECTION 9.12. Exhibits. The schedules and exhibits referred to herein shall constitute a part of this Agreement and are incorporated into this Agreement for all purposes.
SECTION 9.13. Addition of Sellers. Subject to the terms and conditions hereof, from time to time one or more wholly-owned direct or indirect Subsidiaries of TriMas Corp. may become additional Seller parties hereto. If any such Subsidiary wishes to become an additional Seller, TriMas Corp. shall submit a request to such effect in writing to the Purchaser, the Administrative Agent and the RTA Purchasers. The Purchaser, the Administrative Agent and the RTA Purchasers will not unreasonably withhold or delay their consent to such Subsidiary becoming an additional Seller (it being understood, however, that such addition may be predicated on a Review and/or changes to the reserves under the Receivables Transfer Agreement depending on the relative amount of such Subsidiarys receivables). If TriMas Corp., the Purchaser, the Administrative Agent and each of the RTA Purchasers shall have agreed to any such request, such wholly-owned Subsidiary shall become an additional Seller party hereto on the related Seller Addition Date upon satisfaction of the conditions set forth in Section 7.02.
SECTION 9.14. Confidentiality. (a) Each of TriMas Corp., the Sellers and the Purchaser shall maintain, and shall cause each officer, employee and agent of itself and its Affiliates to maintain, the confidentiality of this Agreement, the other Transaction Documents
and all other confidential proprietary information with respect to the other parties and each of their respective businesses obtained by them in connection with the structuring, negotiation and execution of the transactions contemplated herein and in the other Transaction Documents, except for information that has become publicly available or information disclosed (i) to legal counsel, accountants and other professional advisors to the parties and their Affiliates, (ii) as required by law, regulation or legal process (including in connection with any registration Statement or other filing made with the Commission); or (iii) in connection with any legal or regulatory proceeding to which the parties or any of their Affiliates is subject. Each of the parties hereby consents to the disclosure of any nonpublic information with respect to it received by any of the RTA Purchasers or the Administrative Agent to (i) any of the RTA Purchasers or the Administrative Agent, (ii) any Participant or potential Participant, (iii) to legal counsel, accountants and other professional advisors to the RTA Purchasers or the Administrative Agent, (iv) as required by law, regulation or legal process (including in connection with any registration Statement or other filing made with the Commission) or (v) in connection with any legal or regulatory proceeding to which the RTA Purchasers or the Administrative Agent may be subject to.
(b) Each of the parties hereto shall maintain, and shall cause each officer, employee and agent of itself and its Affiliates to maintain, the confidentiality of the Transaction Documents and all other confidential proprietary information with respect to the RTA Purchasers and the Administrative Agent and each of their respective businesses obtained by them in connection with the structuring, negotiation and execution of the transactions contemplated herein and in the other Transaction Documents, except for information that has become publicly available or information disclosed (i) to legal counsel, accountants and other professional advisors to the parties and their Affiliates, (ii) as required by law, regulation or legal process (including in connection with any registration statement or other filing made with the Commission) or (iii) in connection with any legal or regulatory proceeding to which the parties or any of their Affiliates is subject.
SECTION 9.15. No Bankruptcy Petition Against the Purchaser. TriMas Corp. and each Seller hereby covenants and agrees that, prior to the date which is one year and one day after the payment in full of the Aggregate Unpaids, it will not institute against, or join any other Person in instituting against, the Purchaser any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States. The provisions set forth in this Section 9.15 shall be continuing and shall survive any termination of this Agreement.
SECTION 9.16. Waiver of Jury Trial. Each of the parties hereto hereby waives any right to have a jury participate in resolving any dispute, whether sounding in contract, tort or otherwise among any of them arising out of, connected with, relating to or incidental to the relationship between them in connection with this Agreement or the other Transaction Documents. The provisions of this Section 9.16 shall be continuing and shall survive any termination of this Agreement.
(Signature Page Follows)
IN WITNESS WHEREOF, the Purchaser and the Sellers each have caused this Receivables Purchase Agreement to be duly executed by their respective officers as of the day and year first above written.
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TRIMAS CORPORATION |
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/s/ ROBERT J. ZALUPSKI |
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Robert J. Zalupski |
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Vice
President Finance, Corporate |
[Receivables Purchase Agreement
TriMas Corporation]
Signature Page
As Sellers:
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ARROW ENGINE COMPANY |
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MONOGRAM AEROSPACE FASTENERS, INC. |
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NORRIS CYLINDER COMPANY |
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RIEKE CORPORATION |
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CEQUENT PERFORMANCE PRODUCTS, INC. |
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CEQUENT CONSUMER PRODUCTS, INC. |
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HI-VOL PRODUCTS LLC |
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KEO CUTTERS, INC. |
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RICHARDS MICRO-TOOL, INC. |
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/s/ ROBERT J. ZALUPSKI |
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Robert J. Zalupski |
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Vice President & Treasurer |
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LAMONS GASKET COMPANY |
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/s/ HENRY GUND |
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Henry Gund |
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Vice President & Treasurer |
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[Receivables Purchase Agreement
Sellers]
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As the Purchaser: |
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TSPC, Inc. |
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By: |
/s/ ROBERT J. ZALUPSKI |
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Robert J. Zalupski |
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Title: |
Vice President & Treasurer |
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[Receivables Purchase Agreement
Purchaser]
Acknowledged and agreed as of the date first above written:
WACHOVIA BANK, NATIONAL ASSOCIATION as Administrative Agent for the benefit of the RTA Purchasers
By: |
/s/ EERO H. MAKI |
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Name: |
Eero H. Maki |
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Title: Director |
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EXHIBIT A
FORM OF SUBORDINATED NOTE
December 29, 2009
FOR VALUE RECEIVED, the undersigned, TSPC, INC., a Delaware corporation (the Maker), hereby promises to pay to the order of TRIMAS CORPORATION, a Delaware corporation (the Payee), as Agent for the Sellers under the Receivables Purchase Agreement referred to below, on December 30, 2013 or earlier as provided for in the Amended and Restated Receivables Purchase Agreement dated as of December 29, 2009 between the Maker, the Payee and the Sellers (as such agreement may from time to time be amended, supplemented or otherwise modified and in effect, the Receivables Purchase Agreement), the aggregate unpaid principal amount of all Advances to the Maker from the Sellers pursuant to the terms of the Receivables Purchase Agreement, in lawful money of the United States of America in immediately available funds, and to pay interest from the date thereof on the principal amount hereof from the date of this Note continuing until such principal balance shall be paid in full, in like funds, at an office designated by the Payee. Accrued and unpaid interest shall be payable in arrears on the last Business Day of each calendar month (each day, an Interest Payment Date).
Interest shall be payable at the initial rate of 3.50%, per annum, adjusted monthly on each Interest Payment Date, for the month commencing on such Interest Payment date, to the LMIR (as defined in the Receivables Transfer Agreement referenced in the Receivables Purchase Agreement) then in effect. If any Interest Payment Date shall not be a Business Day, then such Interest Payment Date shall be deemed to occur on the next following Business Day, but no additional interest shall be payable. A Business Day means any day that is not a Saturday, Sunday or other day on which commercial banks in New York, New York are required or authorized by law to be closed.
The undersigned, for itself and its legal representatives, successors and assigns, and any others who may at any time become liable for payment hereunder, hereby (a) consents to any and all extensions of time, renewals, waivers, or modifications, if any, that may be granted or consented to by the Payee with regard to the time of payment hereunder or any other provisions hereof. A-1 The Maker hereby waives diligence, presentment, demand, protest, notice of dishonor and notice of nonpayment. The non-exercise by the holder hereof of any of its rights, powers or remedies hereunder or thereafter available in law, in equity, by statute or otherwise in any particular instance shall not constitute a waiver thereof in that or any subsequent instance.
All borrowings evidenced by this Subordinated Note and all payments and prepayments of the principal hereof and interest hereon and the respective dates thereof shall be endorsed by the holder hereof on the schedule attached hereto and made a part hereof, or on a continuation thereof which shall be attached hereto and made a part hereof, or otherwise recorded by such holder in its internal records; provided, however, that the failure of the holder hereof to make such a notation or any error in such a notation shall not in any manner affect the obligation of the Maker to make payments of principal and interest in accordance with the terms of this Subordinated Note and the Receivables Purchase Agreement.
The Maker shall have the right to subject to the limitations set forth in the Receivables Purchase Agreement, reborrow Advances made to it without penalty or premium.
This Note may be prepaid in full, or from time to time in part, at any time. All payments received under this Note shall be applied first to accrued interest and the remainder, if any, to the principal amount hereunder.
This Subordinated Note is the Subordinated Note referred to in the Receivables Purchase Agreement, which, among other things, contains provisions for the subordination of this Subordinated Note to the rights of certain parties under the Receivables Transfer Agreement, all upon the terms and conditions specified therein and as specified on Schedule II to this Subordinated Note. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in, or incorporated by reference into, the Receivables Purchase Agreement.
This Subordinated Note shall be governed by, and construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the Maker has caused this Note to be signed in its corporate name by the officer thereunto duly authorized, and to be dated as of the date first above written.
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SCHEDULE I TO SUBORDINATED NOTE
Advances and Payments
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SCHEDULE II
TO SUBORDINATED NOTE
SUBORDINATION
Section 1. Agreement to Subordinate. (a) The Maker for itself and its successors covenants and agrees, and the Payee, by its acceptance of this Note, likewise covenants and agrees, that the indebtedness represented by this Note and the payment of the principal of and interest on this Note is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, to the prior payment in full of all Senior Indebtedness (as defined in Section l(b) below). This Schedule II shall constitute a continuing offer and inducement to all Persons who become holders of, or continue to hold, Senior Indebtedness. The provisions of this Schedule II are made for the benefit of the holders of Senior Indebtedness, each of whom is an obligee hereunder and is entitled to enforce such holders rights hereunder, without any act or notice of acceptance hereof or reliance hereon. No amendment, modification or discharge of any provision of this Schedule II shall be effective against any holder of Senior Indebtedness unless expressly consented to in writing by such holder. The provisions of this Schedule II apply notwithstanding anything to the contrary contained in this Note.
(b) Senior Indebtedness means all indebtedness incurred, assumed or guaranteed, directly or indirectly, by the Maker, either before, on, or after the date hereof without any limitation as to the amount or terms thereof, and whether such indebtedness (including, but not limited to, interest on any such indebtedness) arises or accrues before or after the commencement of any bankruptcy, insolvency or receivership proceedings, including (1) all obligations of the Maker to the Administrative Agent and the RTA Purchasers (as such terms are defined below) incurred pursuant to the Receivables Transfer Agreement dated as of December 29, 2009 (as amended, supplemented or otherwise modified from time to time, the Receivables Transfer Agreement), among the Maker, the RTA Purchasers (as defined in the Receivables Purchase Agreement), Wachovia Bank, National Association, as administrative agent (the Administrative Agent), the Payee, individually, as collection agent (in such capacity, the Collection Agent) and TriMas, LLC, as Guarantor, including all fees, expenses, indemnities and any other amounts payable pursuant to the Receivables Transfer Agreement. Senior Indebtedness shall continue to constitute Senior Indebtedness for all purposes of this Note, and the provisions of this Schedule II shall continue to apply to such Senior Indebtedness, notwithstanding the fact that such Senior Indebtedness or any claim in respect thereof shall be disallowed, avoided or subordinated pursuant to the provisions of the United States Bankruptcy Code or other applicable law.
Section 2. Subordination of this Note. In the event of any dissolution, winding- up, liquidation or reorganization of the Maker (whether voluntary or involuntary and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors or any other marshaling of the assets and liabilities of the Maker or otherwise), the Maker and the Payee, by its acceptance hereof, covenant and agree that:
(a) all Senior Indebtedness shall first be paid in full, before any payment or distribution is made upon the principal of or interest on this Note:
(b) any payment or distribution of assets of the Maker or from the estate created by the commencement of any such proceeding, whether in cash, property or securities to which the Payee would be entitled except for the provisions of this Schedule II (including any such payments or distributions which may be payable or deliverable by reason of the payment of any other indebtedness of the Maker being subordinated to the payment of this Note), shall be paid or delivered by the Maker or any receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or distribution directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay in full all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness, before any payment or distribution is made to the Payee; and
(c) in the event that any payment or distribution of cash, property or securities shall be received by the Payee in contravention of subsection (a) or (b) of this Section 2 (including any such payments or distributions which may be payable or deliverable by reason of the payment of any other indebtedness of the Maker being subordinated to payment of this Note) before all Senior Indebtedness is paid in full, such payment or distribution shall be held for the benefit of and shall be paid over to the holders of such Senior Indebtedness or their representative or representatives, or to the trustee or trustees under any indenture under which any instrument evidencing any Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay in full all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of Senior Indebtedness.
The Maker shall give prompt written notice to the Payee of any dissolution, winding-up, liquidation or reorganization of the Maker or any assignment for the benefit of creditors.
Section 3. Subrogation; Enforcement. Subject to and only after the payment in full of all Senior Indebtedness at the time outstanding, the Payee shall be subrogated to the rights of the holders of Senior Indebtedness (to the extent of payments or distributions previously made to such holders of Senior Indebtedness pursuant to the provisions of Section 2 and equally and ratably with the holders of all indebtedness of the Maker which by its express terms is subordinated to indebtedness of the Maker to substantially the same extent as this Note is subordinated and is entitled to like rights of subrogation) to receive payments or distributions of assets of the Maker applicable to the Senior Indebtedness until amounts owing on this Note shall be paid in full. No payments or distributions to the holders of Senior Indebtedness of any cash, property or securities to which the Payee would be entitled except for the provisions of this Schedule II, and no payment over pursuant to the provisions of this Schedule II to holders of Senior Indebtedness by the Payee, shall as between the Maker, its creditors other than the holders of Senior Indebtedness and the Payee be deemed to be a payment by the Maker to or for the account of the holders of Senior Indebtedness, it being understood that the provisions of this Schedule II are intended solely for the purpose of defining the relative rights of the Payee, on the one hand, and the holders of the Senior Indebtedness, on the other hand, and nothing contained in this Schedule II or elsewhere in this Note is intended to or shall impair the obligation of the
Maker, which is absolute and unconditional, to pay to the Payee, subject to the rights of the holders of Senior Indebtedness, the principal of and interest on this Note as and when the same shall become due and payable in accordance with its terms, or is intended to or shall effect the relative rights of the Payee and creditors of the Maker other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent the Payee from exercising all remedies otherwise permitted by applicable law upon default under this Note, subject to the rights, if any, under this Schedule II, of the holders of Senior Indebtedness in respect of cash, property or securities of the Maker received upon the exercise of any such remedy.
The Payee by its acceptance hereof: (i) if and so long as payment with respect to this Note is prohibited under this Schedule II, irrevocably authorizes and empowers (but without imposing any obligation on, or any duty to the Payee from) each holder of Senior Indebtedness at any time outstanding and such holders representatives, to demand, sue for, collect, receive and receipt for the Payees payments and distributions in respect of this Note (including, without limitation, all payments and distributions which may be payable or deliverable pursuant to the terms of any indebtedness subordinated to this Note which are required to be paid or delivered to the holders of Senior Indebtedness as provided in this Schedule II and to file and prove all claims therefor and all such other action (including the right to vote, file and prove claims respecting any indebtedness subordinated to this Note), as such holder of Senior Indebtedness or such holders representatives, may determine to be necessary or appropriate for the enforcement of the provisions of this Schedule II; and (ii) agrees to execute and to deliver to each holder of Senior Indebtedness and such holders representatives all such further instruments confirming the authorization hereinabove set forth, and all such powers of attorney, proofs of claim, assignments of claim and other instruments, and to take all such other action that may be requested by such holder of Senior Indebtedness or such holders representatives in order to enable such holder to enforce all claims upon or in respect of the Payees payments and distributions in respect of this Note and so long as there is Senior Indebtedness outstanding, not to compromise, release, forgive or otherwise discharge the obligations of the Maker with respect to this Note. For purposes of this Note, Senior Indebtedness shall be deemed to be outstanding until the Receivables Transfer Agreement is no longer in effect.
Section 4. Reliance on Court Orders. Upon any payment or distribution of assets of the Maker referred to in Section 2, the Payee shall be entitled to rely upon a certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or distribution, delivered to the Payee, for the purpose of ascertaining the persons entitled to participate in such distribution, the holders of Senior Indebtedness and other indebtedness of the Maker, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Schedule II.
The Payee owes no fiduciary duty to the holders of Senior Indebtedness and the Payee undertakes to perform or to observe only such covenants and obligations as are specifically set forth in this Note and no implied covenants and obligations with respect to holders of Senior Indebtedness shall be read into this Note against the Payee.
Section 5. Payments Upon Default in Payment of Senior Indebtedness and During Senior Indebtedness Default. The Maker shall not make any payment with respect to this Note if and so long as:
(1) any Senior Indebtedness is or becomes due and payable (whether at maturity, for an installment of principal or interest, upon acceleration, for mandatory prepayment, or otherwise) and remains unpaid; or
(2) any Senior Indebtedness Default (as defined below) has occurred and has not been cured or waived in conformity with the terms of the instrument, indenture or agreement governing such Senior Indebtedness; or
(3) a payment by the Maker with respect to this Note would, immediately after giving effect thereto, result in a Senior Indebtedness Default.
A payment with respect to this Note shall include, without limitation, payment of principal of and interest on this Note, purchase of this Note by the Maker and any other payment.
Senior Indebtedness Default means the failure to make any payment of any Senior Indebtedness when due or the happening of an event of default with respect to any Senior Indebtedness, as defined therein or in the instrument under which the same is outstanding which, by its terms, if occurring prior to the stated maturity of such Senior Indebtedness, permits or with the giving of notice or lapse of time (or both) would permit any holder thereof, any group of such holders or any trustee or representative for such holders thereupon to accelerate the maturity thereof or results in such acceleration, including, without limitation, a Termination Event or Potential Termination Event as defined in the Receivables Transfer Agreement, whether or not such Senior Indebtedness or instrument has been avoided, disallowed or subordinated.
In the event that, notwithstanding the foregoing, any payment or distribution of cash, property or securities shall be received or collected by the Payee in contravention of this Section 5 or if and as long as payment with respect to this Note is prohibited under this Schedule II, and except as otherwise expressly provided in Sections 6 and 7 below, such payment or distribution shall be held for the benefit of and shall be paid over to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instrument evidencing Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay in full all Senior Indebtedness then due, after giving effect to any concurrent payment to the holders of Senior Indebtedness.
Section 6. Payee Entitled to Presume Payments Permitted in Absence of Notice. Unless and until written notice shall be received by the Payee from any holder of Senior Indebtedness notifying the Payee of the existence of one or more of the circumstances which would prohibit the making of any payment with respect to this Note under the provisions of Section 5 and stating that it is a Notice of Senior Indebtedness Default, the Payee shall be entitled to assume that no such circumstances exist. From and after the receipt by the Payee of such Notice the Payee shall, so long as Senior Indebtedness shall be outstanding (but not thereafter), assume that such circumstances continue to exist unless and until the Payee receives a notice from the holder of such Senior Indebtedness to which such default relates stating that such holder has received evidence satisfactory to it that such circumstances have been cured or waived and stating that it is a Notice of Cure or Waiver of Senior Indebtedness Default.
Section 7. Application by Payee of Moneys Deposited With It. Any funds deposited with or collected by the Payee in respect of this Note shall be subject to the provisions of this Schedule II, except that, if immediately prior to the date on which by the terms of this Note any such funds may become payable for any purpose (including, without limitation, the payment of either the principal of or the interest on this Note), the Payee shall not have received with respect to such finds the Notice of Senior Indebtedness Default provided for in Section 6, then the Payee shall have full power and authority to receive such funds and to apply the same to the purpose for which they were received and shall not be affected with respect to such funds by any Notice of Senior Indebtedness default to the contrary which may be received by the Payee on or after such date.
Section 8. Obligation not Affected. Except as expressly provided in this Schedule II, nothing contained in this Schedule II or elsewhere in this Note shall affect the obligation of the Maker to make payments of the principal of or interest on this Note at any time in accordance with the provisions hereof.
Section 9. No Waiver. No right of any present or future holder of any Senior Indebtedness of the Maker to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act of or failure to act on the part of the Maker or the Payee or by any act or failure to act, by any such holder, or by any noncompliance by the Maker or the Payee with the terms, provisions and covenants of this Note, regardless of any knowledge thereof which any such holder may have or be otherwise charged with. The holders of Senior Indebtedness may extend, renew, modify or amend the terms of the Senior Indebtedness or any security therefor or guaranty thereof and release, sell or exchange or enforce such security or guaranty or elect any right or remedy, or delay in enforcing or release any right or remedy and otherwise deal freely with the Maker all without notice to the Payee and all without affecting the liabilities and obligations of the Payee, even if any right of reimbursement or subrogation or other right or remedy of the Payee is extinguished, affected or impaired thereby. No provision of any supplemental indenture which affects the superior position of the holders of Senior Indebtedness shall be effective against the holders of Senior Indebtedness who have not consented thereto.
Section 10. Effectuation of Subordination by the Payee. The Payee, by his acceptance of this Note, agrees to take such action as may be necessary or appropriate to effectuate the subordination as provided in this Schedule II.
Section 11. Notice to Maker. The Payee shall promptly advise the Maker of any notice, presentation or demand, as the case may be, received by the Payee from holders of Senior Indebtedness.
Section 12. Payee to Presume Outstanding Senior Indebtedness in Absence of Notice. Unless and until written notice shall be given to the Payee by the Maker and the Administrative Agent notifying the Payee that Senior Indebtedness is no longer outstanding, the Payee shall assume that Senior Indebtedness is outstanding. The Maker agrees to give, and to request the Administrative Agent to give, such notice to the Payee promptly after the first date on which no Senior Indebtedness shall be outstanding.
EXHIBIT B
TO
RECEIVABLES PURCHASE AGREEMENT
[FORM OF ADDITIONAL SELLER SUPPLEMENT]
SUPPLEMENT, dated [ ], to the Amended and Restated Receivables Purchase Agreement, dated as of December 29, 2009 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the Receivables Purchase Agreement), among TRIMAS CORPORATION (TriMas Corp.), the Sellers named on Schedule I thereto or added pursuant to a prior Additional Seller Supplement and TSPC, INC., as the Purchaser.
W I T N E S S E T H:
WHEREAS, the Receivables Purchase Agreement provides that any wholly- owned direct or indirect Subsidiary of TriMas Corp., although not originally a Seller thereunder, may become a Seller under the Receivables Purchase Agreement upon the satisfaction of each of the conditions precedent set forth in Sections 7.02 and 9.13 of the Receivables Purchase Agreement;
WHEREAS, the undersigned was not an original Seller under the Receivables Purchase Agreement but now desires to become a Seller thereunder.
NOW, THEREFORE, the undersigned hereby agrees as follows: The undersigned agrees to be bound by all of the provisions of the Receivables Purchase Agreement applicable to a Seller thereunder and agrees that it shall, on the date this Supplement is accepted by , the Purchaser, the Administrative Agent and each of the RTA Purchasers and each of the conditions precedent set forth in Section 7.02 of the Receivables Purchase Agreement have been satisfied, become a Seller for all purposes of the Receivables Purchase Agreement to the same extent as if originally a party thereto.
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.
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Accepted as of the date first above written:
TRIMAS CORPORATION |
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Acknowledged as of the date first above written: |
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WACHOVIA BANK, NATIONAL ASSOCIATION, |
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individually and as Administrative Agent |
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SCHEDULE I
TO RECEIVABLES PURCHASE AGREEMENT
Location of Each Sellers Chief Executive Office
Corporate Name |
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Address of Chief Executive Office |
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County |
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Arrow Engine Company |
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2301 E. Independence, Tulsa, OK 74110 |
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Tulsa |
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Cequent Consumer Products, Inc. |
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29000-2 Aurora Road, Solon, OH 44139 |
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Cuyahoga |
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Lamons Gasket Company |
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7300 Airport Boulevard, Houston, TX 77061 |
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Fort Bend |
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Monogram Aerospace Fasteners, Inc. |
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3423 S. Garfield Ave., City of Commerce, CA 90040 |
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Los Angeles |
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Norris Cylinder Company |
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1535 FM 1845 S., P.O. Box 7486, Longview, TX 75603 |
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Gregg |
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Rieke Corporation |
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500 W. Seventh St., Auburn, IN 46706 |
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De Kalb |
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Cequent Performance Products, Inc. |
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47774 Anchor Court West, Plymouth, MI 48170 |
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Wayne |
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Hi-Vol Products, LLC |
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36975 Schoolcraft Rd., Livonia, MI 48150 |
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Wayne |
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Keo Cutters, Inc. |
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25040 East Street, Warren, MI 48089 |
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Wayne |
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Richards Micro-Tool, Inc. |
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250 Cherry St., Plymouth, MA 02360 |
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Plymouth |
Exhibit 10.3
Execution Version
RECEIVABLES TRANSFER AGREEMENT
by and among
TSPC, INC.,
as Transferor,
TRIMAS CORPORATION,
individually,
as Collection Agent,
TRIMAS COMPANY, LLC
individually,
as Guarantor,
THE PERSONS PARTY HERETO FROM TIME TO TIME AS PURCHASERS
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
Dated as of December 29, 2009
TABLE OF CONTENTS
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PAGE |
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ARTICLE I Definitions |
1 |
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SECTION 1.01. |
Certain Defined Terms |
1 |
SECTION 1.02. |
Other Terms |
1 |
SECTION 1.03. |
Computation of Time Periods |
1 |
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ARTICLE II Purchases and Settlements |
2 |
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SECTION 2.01. |
Facility |
2 |
SECTION 2.02. |
Transfers; Eligible Receivables |
2 |
SECTION 2.03. |
[Intentionally Deleted] |
4 |
SECTION 2.04. |
Monthly Payment Dates |
4 |
SECTION 2.05. |
Reinvestment Procedures |
4 |
SECTION 2.06. |
Liquidation Settlement Procedures |
4 |
SECTION 2.07. |
Change of Commitments |
5 |
SECTION 2.08. |
Fees |
7 |
SECTION 2.09. |
Protection of Ownership Interest of the Purchasers |
7 |
SECTION 2.10. |
Deemed Collections; Application of Payments |
8 |
SECTION 2.11. |
Payments and Computations, etc. |
9 |
SECTION 2.12. |
Settlement Statements |
9 |
SECTION 2.13. |
[Intentionally Deleted.] |
9 |
SECTION 2.14. |
Right of Setoff |
9 |
SECTION 2.15. |
Sharing of Payments, etc. |
10 |
SECTION 2.16. |
[Intentionally Deleted] |
10 |
SECTION 2.17. |
[Intentionally Deleted] |
10 |
SECTION 2.18. |
Illegality |
10 |
SECTION 2.19. |
Inability to Determine the LMIR |
11 |
SECTION 2.20. |
Indemnification |
11 |
SECTION 2.21. |
Indemnity for Reserves and Expenses |
14 |
SECTION 2.22. |
Indemnity for Taxes |
16 |
SECTION 2.23. |
Other Costs, Expenses and Related Matters |
17 |
SECTION 2.24. |
Purchasers |
18 |
SECTION 2.25. |
Use of Historical Data |
18 |
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ARTICLE III Representations and Warranties |
18 |
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SECTION 3.01. |
Representations and Warranties of the Transferor |
18 |
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ARTICLE IV Conditions Precedent |
22 |
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SECTION 4.01. |
Conditions to Effectiveness |
22 |
SECTION 4.02. |
Conditions to Initial Incremental Transfer |
23 |
SECTION 4.03. |
Conditions to Each Transfer |
24 |
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ARTICLE V Covenants |
25 |
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SECTION 5.01. |
Affirmative Covenants of the Transferor |
25 |
SECTION 5.02. |
Negative Covenants of the Transferor |
31 |
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ARTICLE VI Administration and Collections |
34 |
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SECTION 6.01. |
Appointment of Collection Agent |
34 |
SECTION 6.02. |
Duties of Collection Agent |
34 |
SECTION 6.03. |
Rights After Designation of New Collection Agent |
35 |
SECTION 6.04. |
Representations and Warranties of the Collection Agent |
36 |
SECTION 6.05. |
Covenants of the Collection Agent |
37 |
SECTION 6.06. |
Negative Covenants of the Collection Agent |
38 |
SECTION 6.07. |
Collection Agent Default |
38 |
SECTION 6.08. |
Responsibilities of the Transferor and the Sellers |
39 |
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ARTICLE VII Termination Events |
40 |
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SECTION 7.01. |
Termination Events |
40 |
SECTION 7.02. |
Remedies Upon the Occurrence of a Termination Event |
42 |
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ARTICLE VIII The Administrative Agent |
42 |
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SECTION 8.01. |
Appointment |
42 |
SECTION 8.02. |
Delegation of Duties |
43 |
SECTION 8.03. |
Exculpatory Provisions |
43 |
SECTION 8.04. |
Reliance by Administrative Agent |
43 |
SECTION 8.05. |
Notice of Collection Agent Default |
44 |
SECTION 8.06. |
Non-Reliance on the Administrative Agent and Other Purchasers |
44 |
SECTION 8.07. |
Indemnification |
44 |
SECTION 8.08. |
The Administrative Agent in Its Individual Capacity |
45 |
SECTION 8.09. |
Resignation of Administrative Agent; Successor Administrative Agent |
45 |
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ARTICLE IX Limited Guaranty |
46 |
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SECTION 9.01. |
Guaranty of Obligations |
46 |
SECTION 9.02. |
Validity of Obligations; Irrevocability |
46 |
SECTION 9.03. |
Several Obligations |
47 |
SECTION 9.04. |
Subrogation Rights |
47 |
SECTION 9.05. |
Rights of Set-Off |
47 |
SECTION 9.06. |
Representations and Warranties |
47 |
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ARTICLE X Miscellaneous |
48 |
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SECTION 10.01. |
Term of Agreement |
48 |
SECTION 10.02. |
Waivers; Amendments |
49 |
SECTION 10.03. |
Notices |
49 |
SECTION 10.04. |
Governing Law; Submission to Jurisdiction; Integration |
51 |
SECTION 10.05. |
Severability; Counterparts |
51 |
SECTION 10.06. |
Successors and Assigns |
51 |
SECTION 10.07. |
Confidentiality |
53 |
SECTION 10.08. |
Characterization of the Transactions Contemplated by the Agreement |
54 |
SECTION 10.09. |
Limitation on the Termination of Sellers |
55 |
SCHEDULES AND EXHIBITS
Schedule A |
Definitions |
Schedule B |
Purchasers and their Commitments |
Exhibit A |
Credit and Collection Policy |
Exhibit B |
Lock-Box Accounts |
Exhibit C |
Fiscal Months |
Exhibit D |
Form of Interim Report |
Exhibit E |
Form of Monthly Report |
Exhibit F |
Form of Transfer Notice |
Exhibit G |
Form of Reduction Notice |
Exhibit H |
Trade Names |
Exhibit I |
Form of Secretarys Certificate |
Exhibit J |
Form of Transfer Supplement |
RECEIVABLES TRANSFER AGREEMENT
RECEIVABLES TRANSFER AGREEMENT (as amended, supplemented or otherwise modified and in effect from time to time, this Agreement), dated as of December 29, 2009, by and among TSPC, INC., a Nevada corporation, as transferor (in such capacity, the Transferor), TRIMAS CORPORATION (TriMas Corp.), a Delaware corporation, individually, as collection agent (in such capacity, the Collection Agent), TRIMAS COMPANY LLC (TriMas LLC), a Delaware limited liability company, individually, as guarantor under the Limited Guaranty set forth in Article IX (in such capacity, the Guarantor), the several financial institutions identified on Schedule B and their respective permitted successors and assigns (the Purchasers; each, individually, a Purchaser), and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association (Wachovia), as administrative agent for the benefit of the Purchasers (in such capacity, together with its successors in such capacity, the Administrative Agent).
PRELIMINARY STATEMENTS
WHEREAS, the Transferor may desire to convey, transfer and assign to the Purchasers from time to time, undivided percentage interests in its accounts receivable, and each of the Purchasers hereby severally agrees to accept its Pro Rata Share of each such conveyance, transfer and assignment of such undivided percentage interests, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE
I
Definitions
SECTION 1.01. Certain Defined Terms. Capitalized terms used herein shall have the meanings assigned to such terms in, or incorporated by reference into, Schedule A attached hereto, which Schedule A is incorporated by reference herein.
SECTION 1.02. Other Terms. Except as otherwise expressly provided herein, all terms of an accounting or a financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if TriMas Corp. or the Transferor notifies the Administrative Agent that TriMas Corp. or the Transferor requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies TriMas Corp. or the Transferor that the Required Purchasers request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
SECTION 1.03. Computation of Time Periods. Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date,
the word from means from and including, 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
Purchases and Settlements
SECTION 2.01. Facility. Upon the terms and subject to the conditions set forth in this Agreement, the parties hereto establish a receivables financing facility. The Purchasers several obligations to make purchases from the Transferor hereunder shall terminate on the Termination Date. Notwithstanding anything to the contrary contained herein or in the other Transaction Documents, no Purchaser shall be obligated to provide the Transferor with funds in an amount that would exceed such Purchasers unused Commitment then in effect, and the failure of any Purchaser to make its Pro Rata Share of such purchase available to the Transferor (subject to the terms and conditions set forth herein) shall not relieve any other Purchaser of its obligations hereunder.
SECTION 2.02. Transfers; Eligible Receivables.
(a) Incremental Transfers. From time to time prior to the Termination Date, upon the terms and subject to the conditions set forth herein and in the other Transaction Documents, the Transferor may make a conveyance, transfer and assignment to the Purchasers of an undivided percentage ownership interest in the Receivables, together with Related Security, Collections and Proceeds with respect thereto (each, an Incremental Transfer) at the Transfer Price, without recourse except as provided herein, and each of the Purchasers severally agrees to fund its Pro Rata Share of each requested Incremental Transfer, provided, however, that after giving prospective effect to the funding of the Transfer Price for any Incremental Transfer and the payment to the Transferor of such Transfer Price, each of the conditions precedent in Article IV of this Agreement shall be satisfied (with respect to the initial Incremental Transfer) or each of the conditions precedent in Section 4.03 shall be satisfied (in the case of all subsequent Incremental Transfers).
The Transferor shall, by telecopied or electronic notice to the Administrative Agent in the form of Exhibit F hereto (each, a Transfer Notice), offer to make an Incremental Transfer at least one (1) Business Day prior to the proposed date thereof. Each such notice shall specify (x) the desired Transfer Price (which shall be at least $1,000,000 per Purchaser or an integral multiple of $100,000 in excess thereof) or, to the extent that the then available unused portion of the Facility Limit is less than such amount, such lesser amount equal to such available portion of the Facility Limit; and (y) the desired date of such Incremental Transfer which shall be a Business Day. Each Incremental Transfer shall be subject to the condition precedent that the Collection Agent shall have delivered to the Administrative Agent, in form and substance satisfactory to the Administrative Agent, all Settlement Statements required to be delivered as of the date of the applicable Transfer Notice, together with such other additional information as the Administrative Agent may reasonably request. The Administrative Agent will promptly notify the Purchasers of the Administrative Agents receipt of any Transfer Notice.
Each Transfer Notice shall be irrevocable and binding on the Transferor, and the Transferor shall indemnify the Purchasers against any loss or expense incurred by the Purchasers, either directly or indirectly, as a result of any failure by the Transferor to complete such Incremental Transfer, including, without limitation, any loss or expense incurred by the Purchasers by reason of the liquidation or reemployment of funds acquired by the Purchasers to fund such Incremental Transfer.
On the day of each Incremental Transfer, each Purchaser participating in such purchase shall deposit to the Transferors account, in immediately available funds, an amount equal to its Pro Rata Share of the Transfer Price for such Incremental Transfer. No Purchaser shall have any responsibility for the failure of any other Purchaser to make any such deposit.
(b) Reinvestment Transfers. On each Business Day occurring after the initial Incremental Transfer hereunder and prior to the Termination Date, the Transferor may convey, transfer and assign to each Purchaser, and each Purchaser shall purchase from the Transferor, an undivided percentage ownership interest in each and every Receivable, together with Related Security, Collections and Proceeds with respect thereto, to the extent that Collections are available for such Transfer in accordance with Section 2.05 hereof. The Transferor agrees to maintain, at all times prior to the Termination Date, a Net Receivables Balance in an amount at least sufficient to maintain (pursuant to Section 2.06) the Percentage Interest at an amount not greater than the Maximum Percentage Interest. Accordingly, the maximum amount of funding that the Transferor may obtain on the Initial Incremental Transfer Date or at any time thereafter shall be equal to the maximum Net Investment that would not exceed the Facility Limit and would not cause the Percentage Interest to exceed the Maximum Percentage Interest.
(c) All Transfers. Each Transfer shall constitute a purchase of undivided percentage ownership interests in each and every Receivable, together with Related Security, Collections and Proceeds with respect thereto, then existing, as well as in each and every Receivable, together with Related Security, Collections and Proceeds with respect thereto, which arises at any time after the date of such Transfer. The applicable Purchasers aggregate undivided percentage ownership interest in the Receivables, together with the Related Security, Collections and Proceeds with respect thereto, shall equal the Percentage Interest in effect from time to time. By accepting any conveyance, transfer and assignment of ownership interests in the Receivables hereunder, none of the Purchasers nor the Administrative Agent assumes or shall have any obligations or liability under any of the applicable Contracts, all of which shall remain the obligations and liabilities of the Sellers. Such purchases from the Transferor by the Purchasers shall be made in accordance with their respective Pro Rata Shares.
(d) Percentage Interest. The Percentage Interest shall be initially computed as of the opening of business of the Collection Agent on the Initial Incremental Transfer Date. Thereafter, until the Termination Date, the Percentage Interest shall be automatically recomputed as of the close of business of the Collection Agent on each day (other than a day after the Termination Date). The Percentage Interest shall remain constant from the time as of which any such computation or recomputation is made until the time as of which the next such recomputation, if any, shall be made. At all times on and after the Termination Date 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, the Percentage Interest shall equal 100%.
SECTION 2.03. [Intentionally Deleted].
SECTION 2.04. Monthly Payment Dates. Notwithstanding the limitation on recourse under Section 2.01 hereof, on each Monthly Payment Date, (a) the Transferor shall pay to the Administrative Agent, for distribution to the Purchasers, all accrued and unpaid Discount, all accrued and unpaid Fees for the calendar month (or portion thereof) then most recently ended and all other Aggregate Unpaids (other than Net Investment), if any, that are then due and owing, and (b) the Transferor shall pay to the Collection Agent the accrued and unpaid Servicing Fee for the calendar month (or portion thereof) then most recently ended. Nothing in this Agreement or the other Transaction Documents shall limit in any way the obligations of the Transferor to pay the amounts set forth in this Section 2.04.
SECTION 2.05. Reinvestment Procedures. (a) On each Business Day after the date of any Incremental Transfer but prior to the Termination Date, and provided that Section 2.06 shall not then be applicable, the Collection Agent shall, out of the Percentage Interest of Collections received on or prior to such day and not previously set aside or paid:
(i) apply the balance of such Percentage Interest of Collections remaining after payment of amounts (if any) due and owing on such date pursuant to Section 2.04 to the purchase of additional undivided percentage interests in each Receivable pursuant to Section 2.02(b) hereof; and
(ii) remit the balance, if any, of such Percentage Interest of Collections remaining after the applications provided in clause (i) to the Transferor or its designee.
(b) Collections remitted to the Transferor shall be available for the ordinary business purposes of the Transferor or otherwise, subject to the provisions of the Transaction Documents.
SECTION 2.06. Liquidation Settlement Procedures.
(a) If on any Interim Settlement Date on or prior to the Termination Date, the Percentage Interest is greater than the Maximum Percentage Interest, then the Transferor shall immediately pay to the Administrative Agent, for distribution to the Purchasers, from previously received Collections, an amount that, when applied to reduce the Net Investment, will result in a Percentage Interest less than or equal to the Maximum Percentage Interest, to be allocated to each Purchaser based on its Pro Rata Share. Such amount shall be applied to reduce the Net Investment.
(b) On the Termination Date and on each day thereafter and on each day on which a Potential Termination Event has occurred and is continuing, the Collection Agent shall deposit to the Administrative Agents Account, for the benefit of the Purchasers, the Percentage Interest of all Collections received on such day, and the Administrative Agent shall distribute such funds in the following order of priority:
(i) first, if TriMas Corp. or any Affiliate of TriMas Corp. is not then the Collection Agent to the Collection Agents account, in payment in full of the Servicing Fee payable to the Collection Agent;
(ii) second, in payment in full of the accrued Discount and all Fees payable by the Transferor;
(iii) third, in reduction of the Net Investment to zero;
(iv) fourth, in payment in full of all other Aggregate Unpaids not covered in clauses (i) through (iii) above; and
(v) fifth, if TriMas Corp. or any Affiliate or stockholder of TriMas Corp. is the Collection Agent, to its account as Collection Agent, in payment of the Servicing Fee payable to such Person as Collection Agent.
The Administrative Agent, upon its receipt of such amounts in the Administrative Agents Account, shall distribute such amounts to the Purchasers entitled thereto; provided that if the Administrative Agent shall have insufficient funds to pay all of the above amounts in full on any such date, the Administrative Agent shall pay such amounts in the order of priority set forth above and, with respect to any such category above for which the Administrative Agent shall have insufficient funds to pay all amounts owing on such date, ratably (based on the amounts in such categories owing to such Persons) among all such Persons entitled to payment thereof.
(c) Following the date on which the Net Investment has been reduced to zero and all accrued Discount, Fees, Servicing Fees and all other Aggregate Unpaids have been paid in full, (i) the Percentage Interest shall equal zero, (ii) the Administrative Agent, on behalf of the Purchasers, shall be considered to have reconveyed to the Transferor all of the Purchasers right, title and interest in, to and under the Receivables and Related Security, Collections and Proceeds with respect thereto, and (iii) the Administrative Agent, on behalf of the Purchasers, shall execute and deliver to the Transferor, at the Transferors expense, such documents or instruments as are necessary to terminate the Purchasers respective interests in the Receivables and Related Security, Collections and Proceeds with respect thereto. Any such documents shall be prepared by or on behalf of the Transferor.
(d) The Transferor may, by delivery of a Reduction Notice to the Administrative Agent and each Purchaser by telecopy, at any time and from time to time reduce the Net Investment, in whole or in part, upon at least one (1) Business Days prior notice to the Administrative Agent before 11:00 a.m., New York City time; provided, however, that each partial reduction of the Net Investment shall be in an amount that is an integral multiple of $1,000,000 and not less than $2,000,000 in the aggregate. Upon the date specified in such Reduction Notice for such reduction, the Transferor shall immediately pay to each of the Purchasers, from previously received Collections, an amount equal to its Pro Rata Share of such targeted reduction.
SECTION 2.07. Change of Commitments. (a) Reduction of Commitments. Upon ten (10) Business Days written notice to the Administrative Agent, the Transferor may reduce the Commitments of the Purchasers in an aggregate amount equal to $5,000,000 or a whole multiple of $500,000 in excess thereof. Upon any such reduction, the Commitment of each Purchaser shall be reduced in an amount equal to such Purchasers Pro Rata Share of the amount of such reduction, and the Facility Limit shall be reduced to the level of the reduced Aggregate
Commitment. Once reduced, the Commitments shall not be subsequently reinstated. The Commitment of each Purchaser shall be automatically reduced to zero on the Commitment Expiry Date.
(b) Increase of Commitments and Facility Limit.
SECTION 2.08. Fees. To the extent not otherwise provided for by the provisions of this Agreement, the Transferor shall pay to the Administrative Agent, for its own account and the account of each Purchaser, the Fees specified in the Fee Letter.
SECTION 2.09. Protection of Ownership Interest of the Purchasers. (a) The Transferor will, and will cause each Seller to, from time to time, at its expense, promptly execute and deliver all instruments and documents and take all actions as may be necessary or as the Administrative Agent may reasonably request in order to perfect or protect the Transferred Interest or to enable the Administrative Agent or the Purchasers to exercise or enforce any of their respective rights hereunder. Without limiting the foregoing, the Transferor will, and will cause each Seller to, upon the request of the Administrative Agent or any of the Purchasers, in order to accurately reflect this purchase and sale transaction, (x) execute and file such financing or continuation statements or amendments thereto or assignments thereof (as permitted pursuant to Section 10.06 hereof) as may be requested by the Administrative Agent for the benefit of the Purchasers and (y) mark its respective master data processing records and other documents with a legend describing the conveyance to the Transferor (in the case of the Sellers) and the Administrative Agent for the benefit of the Purchasers, of the Transferred Interest. The Transferor shall, and will cause the Sellers to, upon request of the Administrative Agent, obtain such additional search reports as the Administrative Agent, for the benefit of the Purchasers, shall reasonably request. To the fullest extent permitted by applicable law, the Administrative Agent shall be permitted to sign (if required) and file continuation statements and amendments thereto and assignments thereof without the Transferors or any Sellers signature. Carbon, photostatic or other reproduction of this Agreement or any financing statement shall be sufficient as a financing statement. The Administrative Agent is hereby authorized to file a financing statement naming Transferor as the debtor and/or seller and describing the collateral covered thereby as all personal property and the proceeds thereof, all assets and the proceeds thereof or words of similar effect. The Administrative Agent and the Purchasers shall have, in addition to the rights and remedies that they may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other applicable law, which rights and remedies shall be cumulative.
The Transferor shall not, and shall not permit any Seller to, change its respective name (within the meaning of Section 9-507(c) of the Relevant UCC), or jurisdiction of organization, form of organization, taxpayer identification number or state organizational number, unless it shall have: (i) given the Administrative Agent at least thirty (30) days prior notice thereof and (ii) prepared at the Transferors expense and delivered to the Administrative Agent all financing statements, instruments and other documents necessary to preserve and protect the Transferred Interest or requested by the Administrative Agent in connection with such change. Any filings under the Relevant UCC or otherwise that are occasioned by such change shall be made at the expense of the Transferor.
(b) The Collection Agent shall instruct, and shall cause the other Sellers to instruct, all Obligors to cause all Collections to be deposited directly with a Lock-Box Bank. Any Lock-Box Account maintained by a Lock-Box Bank pursuant to the related Lock-Box Agreement shall be under the exclusive control (within the meaning of Section 9-104 of the Relevant UCC) of the Administrative Agent which is hereby granted to the Administrative Agent by the Transferor. The Collection Agent shall be permitted to give instructions to the Lock-Box Banks prior to delivery of a Collection Notice by the Administrative Agent. The Collection Agent shall not add any bank as a Lock-Box Bank to those listed on Exhibit B attached hereto unless such bank has entered into a Lock-Box Agreement. The Collection Agent shall not terminate any bank as a Lock-Box Bank unless the Administrative Agent shall have received sixty (60) days prior notice of such termination. If the Transferor, any Seller or the Collection Agent receives any Collections, the Transferor or the Collection Agent, as applicable, shall, or shall cause such Seller to, remit such Collections to a Lock-Box Account within one (1) Business Day of receipt thereof.
(c) The Transferor hereby pledges, assigns and transfers to the Administrative Agent, for the benefit of the Purchasers, and hereby creates and grants to the Administrative Agent, for the benefit of the Purchasers, a security interest in the Lock-Box Accounts and all cash, checks and other negotiable instruments, funds and other evidences of payment held therein.
SECTION 2.10. Deemed Collections; Application of Payments. (a) If on any day a Receivable becomes a Diluted Receivable, the Transferor shall be deemed to have received on such day a Collection of such Receivable in the amount of such reduction or cancellation, and the Transferor shall pay to the Collection Agent an amount equal to such reduction or cancellation (to the extent not netted against the Purchase Price on such day pursuant to Section 3.01 of the Receivables Purchase Agreement). Any such amount shall be applied by the Collection Agent as a Collection in accordance with Section 2.05 or 2.06 hereof, as applicable. The Net Investment shall be reduced by the amount of such payment actually received by the Administrative Agent.
(b) If on any day any of the representations or warranties in Article III was or becomes untrue with respect to a Receivable or the nature of the Administrative Agents interest therein (each such Receivable, a Fully Diluted Receivable), the Transferor shall be deemed to have received on such day a Collection of such Receivable in full and the Transferor shall, on such day, pay to the Collection Agent an amount equal to the Outstanding Balance of such Receivable and such amount shall be allocated and applied by the Collection Agent as a Collection allocable to the Transferred Interest in accordance with Section 2.05 or 2.06 hereof, as
applicable. The Net Investment shall be reduced by the amount of such payment actually received by the Administrative Agent.
(c) Any payment by an Obligor in respect of any indebtedness owed by it to the Transferor or the Seller shall, except as provided in paragraphs (a) and (b) of this Section 2.10 or as otherwise specified by such Obligor or otherwise required by contract or law and unless otherwise instructed by the Purchasers, be applied as a Collection of any Receivable of such Obligor included in the Transferred Interest (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.
SECTION 2.11. Payments and Computations, etc. All amounts to be paid or deposited by the Transferor or the Collection Agent hereunder shall be paid or deposited in accordance with the terms hereof no later than 12:00 p.m. (New York City time) on the day when due in immediately available funds; if such amounts are payable to any Purchaser, they shall be paid or deposited to the Administrative Agents Account, until otherwise notified by the Administrative Agent. No later than 3:00 p.m. (New York City time) on the date of any Incremental Transfer hereunder, the applicable Purchasers will make available to the Transferor, in immediately available funds, the Transfer Price for such Incremental Transfer on such day by remitting such amount to an account of the Transferor specified in the related notice of Transfer. Whenever any payment or deposit to be made hereunder shall be due on a day other than a Business Day, such payment or deposit shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of such payment or deposit. Any computations by the Administrative Agent of amounts payable by the Transferor hereunder shall be binding upon the Transferor absent manifest error.
SECTION 2.12. Settlement Statements.
(a) Interim Reports. On each Interim Reporting Date, the Collection Agent shall deliver to the Administrative Agent and the Transferor an Interim Report as of the close of business on the immediately preceding Business Day. The Interim Report may be delivered in an electronic format mutually agreed upon by the Collection Agent and the Administrative Agent, or pending such agreement, by facsimile.
(b) Monthly Report. On each Monthly Reporting Date, the Collection Agent shall deliver to the Administrative Agent and the Transferor a monthly report, substantially in the form of Exhibit E (the Monthly Report).
SECTION 2.13. [Intentionally Deleted.]
SECTION 2.14. Right of Setoff. Each of the Purchasers is hereby authorized (in addition to any other rights it may have) at any time after the occurrence of the Termination Date, or during the continuation of a Termination Event, to set off, appropriate and apply (without presentment, demand, protest or other notice which are hereby expressly waived) any deposits and any other indebtedness held or owing by such Purchaser to, or for the account of, the Transferor against the amount of the Aggregate Unpaids owing by the Transferor to such Purchaser (even if contingent or unmatured).
SECTION 2.15. Sharing of Payments, etc. If any Purchaser (for purposes of this Section 2.15 only, a Recipient) shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) on account of any interest in the Transferred Interest owned by it in excess of its Pro Rata Share of payments on account of any interest in the Transferred Interest obtained by the Purchasers entitled thereto, such Recipient shall forthwith purchase from the Purchasers entitled to a share of such amount participations in the percentage interests owned by such Persons as shall be necessary to cause such Recipient to share the excess payment ratably with each such other Person entitled thereto; provided, however, that if all or any portion of such excess payment is thereafter recovered from such Recipient, such purchase from each such other Person shall be rescinded and each such other Person shall repay to the Recipient the purchase price paid by such Recipient for such participation to the extent of such recovery, together with an amount equal to such other Persons Pro Rata Share (according to the proportion of (a) the amount of such other Persons required payment to (b) the total amount so recovered from the Recipient) of any interest or other amount paid or payable by the Recipient in respect of the total amount so recovered.
SECTION 2.16. [Intentionally Deleted].
SECTION 2.17. [Intentionally Deleted].
SECTION 2.18. Illegality. (a) Notwithstanding any other provision herein, if, after the Closing Date, the adoption of any Law or bank regulatory guideline or any amendment or change in the interpretation of any existing or future Law or bank regulatory guideline by any Official Body charged with the administration, interpretation or application thereof, or the compliance with any directive of any Official Body (in the case of any bank regulatory guideline, whether or not having the force of Law), shall make it unlawful for any Purchaser to fund or maintain an LMIR Tranche as contemplated by this Agreement, (i) such Purchaser shall promptly, and in any event within forty-five (45) days after receiving actual knowledge thereof, deliver a certificate to the Transferor (with a copy to the Administrative Agent) setting forth the basis for such illegality, which certificate shall be conclusive absent manifest error, and (ii) for so long as such illegality continues, the Funded Amount of such Purchaser shall be maintained as an ABR Tranche.
If circumstances subsequently change so that it is no longer unlawful for an affected Purchaser to acquire or maintain an LMIR Tranche as contemplated hereunder, such Purchaser will, as soon as reasonably practicable after such Purchaser knows of such change in circumstances, notify the Transferor and the Administrative Agent, and upon receipt of such notice, the Funded Amount of such Purchaser shall be maintained as an LMIR Tranche.
(b) Each Purchaser agrees that, upon the occurrence of any event giving rise to the operation of Section 2.18(a) with respect to such Purchaser, it will, if requested by the Transferor and to the extent permitted by law or by the relevant Official Body, endeavor in good faith to change the office at which it books its portions of LMIR Tranches hereunder if such change would make it lawful for such Purchasers to continue to acquire or to maintain its acquisition of portions of LMIR Tranches hereunder; provided, however, that such change may be made in such manner that such Purchaser, in its sole determination, suffers no unreimbursed cost or expense or any other disadvantage whatsoever.
SECTION 2.19. Inability to Determine the LMIR. If, at any time:
(1) the Administrative Agent shall have determined (which determination in the absence of manifest error shall be conclusive and binding upon the Transferor) that, by reason of circumstances affecting the interbank Eurodollar market, either (a) deposits of a type appropriate to match-fund its investment at the LMIR are not available, or (b) adequate and reasonable means do not exist for ascertaining the LMIR; or
(2) the Administrative Agent shall have received notice from the Required Purchasers that the LMIR will not adequately and fairly reflect the cost to such Purchasers (as conclusively certified by such Purchasers) of purchasing or maintaining their affected portions of LMIR Tranches;
then, in either such event, the Administrative Agent shall give telecopy or telephonic notice thereof (confirmed in writing) to the Transferor and the Purchasers as soon as practicable (but, in any event, within ten (10) days after such determination or notice, as applicable) thereafter. Until such notice has been withdrawn by the Administrative Agent, no further LMIR Tranches shall be made. The Administrative Agent agrees to withdraw any such notice as soon as reasonably practicable after the Administrative Agent is notified of a change in circumstances which makes such notice inapplicable.
SECTION 2.20. Indemnification.
(a) Indemnities by the Transferor. Without limiting any other rights which the Administrative Agent or the Purchasers may have hereunder or under applicable law, the Transferor hereby agrees to indemnify the Purchasers and the Administrative Agent and any successors and permitted assigns and their respective officers, directors, agents and employees (collectively, Indemnified Parties) from and against any and all damages, losses, claims, liabilities, deficiencies, costs, disbursements and expenses, including, without limitation, interest, penalties, amounts paid in settlement and reasonable attorneys fees (including allocated costs of attorneys who may be employees of the Administrative Agent) (all of the foregoing being collectively referred to as Indemnified Amounts) awarded against or incurred by any of them in any action or proceeding between the Transferor, the Collection Agent in such capacity or the Sellers and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent or any Purchaser of the Transferred Interest or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent relating to or resulting from (x) gross negligence or willful misconduct on the part of an Indemnified Party or (y) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables or (ii) all taxes (other than Indemnified Taxes). Without limiting the generality of the foregoing, the Transferor shall indemnify each Indemnified Party for Indemnified Amounts (without duplication of amounts for which any Indemnified Party is effectively held harmless under any other provision hereof) relating to or resulting from:
(A) any representation or warranty made in writing by the Transferor, the Guarantor, the Collection Agent or any Seller or any officers of the Transferor, the Guarantor, the
Collection Agent or any Seller under or in connection with this Agreement, any of the other Transaction Documents, any Settlement Statement or any other information or report delivered by any of them pursuant hereto or thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(B) the failure by the Transferor, the Guarantor, the Collection Agent or any Seller to comply with any applicable law, rule or regulation with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such applicable law, rule or regulation;
(C) the failure to either (x) vest and maintain vested in the Administrative Agent, for the benefit of the Purchasers, an undivided first priority, perfected percentage ownership interest, to the extent of the Transferred Interest, in the Receivables and Related Security, Collections and Proceeds with respect thereto, free and clear of any Adverse Claim or (y) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Agent, for the benefit of the Purchasers, in the Transferors interest in the Receivables and Related Security, Collections and Proceeds with respect thereto, free and clear of any Adverse Claim (other than any Adverse Claim created by or through the Purchasers);
(D) the failure to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the Relevant UCC or other applicable laws with respect to any of the Receivables or Related Security, Collections and Proceeds with respect thereto;
(E) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(F) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable;
(G) the transfer of an ownership interest in any Receivable other than an Eligible Receivable pursuant to the Transaction Documents;
(H) the failure by any of the Transferor, the Guarantor, TriMas Corp. as the Collection Agent or any Seller to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any duty or obligation in accordance with the provisions hereof or thereof or to perform any of its duties or obligations under the Contracts;
(I) the Percentage Interest exceeding the Maximum Percentage Interest at any time on or prior to the Termination Date;
(J) the failure of any Seller or the Guarantor to pay when due any taxes, including without limitation, sales, excise or personal property taxes payable in connection with any of the Receivables with respect to which an Indemnified Party may be held liable as a transferee of such Receivables;
(K) any repayment by any Indemnified Party of any amount previously distributed in reduction of Net Investment which such Indemnified Party believes in good faith is required to be made;
(L) the commingling by the Transferor, the Guarantor, any Seller or TriMas Corp. as the Collection Agent of Collections of Receivables at any time with other funds;
(M) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Transfers by the Transferor or any Seller, the ownership of Transferred Interests, or any Receivable, Related Security or Contract;
(N) the failure of any Lock-Box Bank to remit any amounts held in the Lock-Box Accounts pursuant to the instructions of the Collection Agent, the Transferor, the Sellers or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Lock-Box Agreement) whether by reason of the exercise of set-off rights or otherwise;
(O) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Transferor or the Sellers to qualify to do business or file any notice of business activity report or any similar report;
(P) any failure of the Transferor to give reasonably equivalent value to the applicable Seller in consideration of the purchase by the Transferor from such Seller of any Receivable, or any attempt by any Person to void, rescind or set aside any such transfer under statutory provisions or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code; or
(Q) any action taken by the Transferor, any Seller, the Guarantor or the Collection Agent in the enforcement or collection of any Receivable; provided, however, that the Transferor shall not be liable for Indemnified Amounts attributable to the fraud, gross negligence, breach of fiduciary duty or willful misconduct of any Collection Agent in the enforcement or collection of any Receivable if such Collection Agent is not TriMas Corp. or an Affiliate or stockholder of TriMas Corp.
(b) Indemnities by the Collection Agent. Without limiting any other rights which the Administrative Agent or the Purchasers may have hereunder or under applicable law, the Collection Agent hereby agrees to indemnify the Indemnified Parties from and against any and all Indemnified Amounts awarded against or incurred by any of them in any action or proceeding between the Collection Agent in such capacity and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or
indirectly, by the Administrative Agent or any Purchaser of the Transferred Interest or any of the other transactions contemplated hereby or thereby, relating to or resulting from:
(A) any representation or warranty made in writing by the Collection Agent or any officers of the Collection Agent under or in connection with this Agreement, any of the other Transaction Documents, any Settlement Statement or any other information or report delivered by the Collection Agent pursuant hereto or thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(B) the failure by the Collection Agent to comply with any applicable law, rule or regulation in collecting or enforcing any Receivable or the related Contract;
(C) the failure by any of TriMas Corp. or any of its Affiliates as the Collection Agent to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any duty or obligation in accordance with the provisions hereof or thereof;
(D) the commingling by TriMas Corp. as the Collection Agent of Collections of Receivables at any time with other funds;
(E) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Transfers by the Transferor or any Seller, the ownership of Transferred Interests, or any Receivable, Related Security or Contract; or
(F) any action taken by the Collection Agent in the enforcement or collection of any Receivable; provided, however, that the Collection Agent shall not be liable for Indemnified Amounts attributable to the fraud, gross negligence, breach of fiduciary duty or willful misconduct of any Collection Agent in the enforcement or collection of any Receivable if such Collection Agent is not TriMas Corp. or an Affiliate or stockholder of TriMas Corp.;
excluding, however, in each of the foregoing cases, (i) Indemnified Amounts to the extent relating to or resulting from (x) gross negligence or willful misconduct on the part of an Indemnified Party or (y) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables or (ii) all taxes (other than Indemnified Taxes).
SECTION 2.21. Indemnity for Reserves and Expenses. (a) If after the date hereof, the adoption of any Law or bank regulation or regulatory guideline or any amendment or change in the interpretation of any existing or future Law or bank regulation or regulatory guideline by any Official Body charged with the administration, interpretation or application thereof, or the compliance with any directive of any Official Body (in the case of any bank regulation or regulatory guideline, whether or not having the force of Law), other than Laws, interpretations, guidelines or directives relating to Taxes:
(i) shall impose, modify or deem applicable any reserve, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System) against assets of, deposits with or for
the account of, or credit extended by, any Indemnified Party or shall impose on any Indemnified Party or on the United States market for certificates of deposit or the London interbank market any other condition affecting this Agreement, the other Transaction Documents, the ownership, maintenance or financing of the Transferred Interest, the Receivables or payments of amounts due hereunder or its obligation to advance funds hereunder or under the other Transaction Documents; or
(ii) imposes upon any Indemnified Party any other expense (including, without limitation, reasonable attorneys fees and expenses, and expenses of litigation or preparation therefor in contesting any of the foregoing) with respect to this Agreement, the other Transaction Documents, the ownership, maintenance or financing of the Transferred Interest, the Receivables or payments of amounts due hereunder or its obligation to advance funds hereunder or otherwise in respect of this Agreement, the other Transaction Documents, the ownership, maintenance or financing of the Transferred Interests or the Receivables;
and the result of any of the foregoing is to increase the cost to such Indemnified Party with respect to this Agreement, the other Transaction Documents, the ownership, maintenance or financing of the Transferred Interest, the Receivables, the obligations hereunder, the funding of any Purchases hereunder or under the other Transaction Documents, by an amount deemed by such Indemnified Party to be material, then, within ten (10) Business Days after demand by such Indemnified Party through the Administrative Agent, acting at the direction of the applicable Purchaser, the Transferor shall pay to the Administrative Agent, for the benefit of such Indemnified Party, such additional amount or amounts (other than with respect to taxes) as will compensate such Indemnified Party for such increased cost or reduction; provided that no such amount shall be payable with respect to any period commencing more than two hundred seventy (270) days prior to the date the Administrative Agent, acting at the direction of the applicable Purchaser, first notifies the Transferor of its intention to demand compensation therefor under this Section 2.21; provided, further, that if such change in Law, rule or regulation giving rise to such increased costs or reductions is retroactive, then such 270-day period shall be extended to include the period of retroactive effect thereof. In making demand hereunder, the applicable Indemnified Party shall submit to the Transferor a certificate as to such increased costs incurred which shall provide in reasonable detail the basis for such claim.
(b) If any Indemnified Party shall have determined that after the date hereof, the adoption of any applicable Law or bank regulation or regulatory guideline regarding capital adequacy, or any change therein, or any change in the interpretation thereof by any Official Body, or any directive regarding capital adequacy (in the case of any bank regulatory guideline, whether or not having the force of law) of any such Official Body, has or would have the effect of reducing the rate of return on capital of such Indemnified Party (or its parent) as a consequence of such Indemnified Partys obligations hereunder or with respect hereto to a level below that which such Indemnified Party (or its parent) could have achieved but for such adoption, change, request or directive (taking into consideration its policies with respect to capital adequacy) by an amount deemed by such Indemnified Party to be material, then from time to time, within ten (10) Business Days after demand by such Indemnified Party through the Administrative Agent, acting at the direction of the applicable Purchaser, the Transferor shall pay to the Administrative Agent, for the benefit of such Indemnified Party, such additional
amount or amounts (other than with respect to taxes) as will compensate such Indemnified Party (or its parent) for such reduction; provided that no such amount shall be payable with respect to any period commencing more than two hundred seventy (270) days prior to the date the Administrative Agent first notifies the Transferor of its intention to demand compensation therefor under this Section 2.21(b); provided, further, that if such change in Law, rule or regulation giving rise to such increased costs or reductions is retroactive, then such 270-day period shall be extended to include the period of retroactive effect thereof. In making demand hereunder, the applicable Indemnified Party shall submit to the Transferor a certificate as to such increased costs incurred which shall provide in reasonable detail the basis for such claim.
SECTION 2.22. Indemnity for Taxes. (a) All payments made by the Transferor or the Collection Agent to the Administrative Agent for the benefit of the Purchasers under this Agreement and any other Transaction Document shall be made free and clear of, and without deduction or withholding for or on account of any Indemnified Taxes. If any such Indemnified Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Indemnified Party hereunder, (i) the amounts so payable to the Administrative Agent or such Indemnified Party shall be increased to the extent necessary to yield to the Administrative Agent or such Indemnified Party (after payment of all Indemnified Taxes) all amounts payable hereunder at the rates or in the amounts specified in this Agreement and the other Transaction Documents and (ii) the Transferor or the Collection Agent, as the case may be, shall make such deductions or withholdings and shall pay the amount so deducted or withheld to the applicable Official Body in accordance with the applicable law. The Transferor shall indemnify the Administrative Agent or any Indemnified Party for the full amount of any Indemnified Taxes paid by the Administrative Agent or the Indemnified Party within ten (10) Business Days after the date of written demand therefor by the Administrative Agent or such Indemnified Party if the Administrative Agent or such Indemnified Party, as the case may be, has delivered to the Transferor a certificate signed by an officer of the Administrative Agent or such Indemnified Party, as the case may be, setting forth in reasonable detail the amount so paid and the computations made to determine such amount. Such certificate shall be conclusive absent manifest error.
(b) Each Indemnified Party that is not a United States person (within the meaning of Section 7701(a)(30) of the Code) (a United States Person) shall:
(i) at the time such Indemnified Party becomes a party to this Agreement or the Transaction Documents, deliver to the Transferor and the Administrative Agent (A) two duly completed copies of IRS Form W-8ECI, or successor applicable form, as the case may be, and (B) an IRS Form W-8BEN or W-9, or successor applicable form, as the case may be;
(ii) deliver to the Transferor and the Administrative Agent two (2) further copies of any such form or certification on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Transferor or the Administrative Agent; and
(iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the Transferor or the Administrative Agent;
unless, in the case of (ii) and (iii) above, any change in treaty, law regulation, governmental rule, guideline order, or official application or official interpretation thereof has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Indemnified Party from duly completing and delivering any such form with respect to it, and such Indemnified Party so advises the Transferor and the Administrative Agent. Each such Indemnified Party that is not a United States person (A) shall certify (i) in the case of an IRS Form W-8ECI, or successor applicable form, that it is entitled to receive payments under this Agreement and the other Transaction Documents without deduction or withholding of any United States federal income taxes and (ii) in the case of an IRS Form W-8BEN or IRS Form W-9, or successor applicable form, that it is entitled to an exemption from United States backup withholding tax and (B) shall agree to provide any other certification and documentation as required by the applicable law that is reasonably requested by the Transferor, the Sellers or the Collection Agent. Each Person that is a Purchaser or Participant hereunder, or which otherwise becomes a party to this Agreement and the other Transaction Documents as a Purchaser, shall, prior to the effectiveness of such assignment, participation or addition, as applicable, be required to provide all of the forms and statements required pursuant to this Section 2.22.
SECTION 2.23. Other Costs, Expenses and Related Matters. (a) The Transferor agrees, upon receipt of a written invoice, to pay or cause to be paid, and to save the Administrative Agent and the Purchasers harmless against liability for the payment of, all reasonable out-of-pocket expenses (including, without limitation, reasonable attorneys, accountants, rating agencies and other third parties fees and expenses, any filing fees and expenses incurred by officers or employees of the Administrative Agent and/or the Purchasers) or intangible, documentary or recording taxes incurred by or on behalf of the Administrative Agent and the Purchasers (i) in connection with the negotiation, execution, delivery and preparation of this Agreement, the other Transaction Documents and any documents or instruments delivered pursuant hereto and thereto and the transactions contemplated hereby or thereby (including, without limitation, the perfection or protection of the Transferred Interest) and (ii) (A) relating to any amendments, waivers or consents under this Agreement and the other Transaction Documents, (B) arising in connection with the Administrative Agents or the Purchasers enforcement or preservation of rights (including, without limitation, the perfection and protection of the Transferred Interest under this Agreement), or (C) arising in connection with any audit, dispute, disagreement, litigation or preparation for litigation involving this Agreement or any of the other Transaction Documents (all of such amounts, collectively, Transaction Costs). All Transaction Costs owed by the Transferor pursuant to this subsection 2.23(a) shall be payable in accordance with Section 2.05 and 2.06.
(b) [Intentionally deleted].
(c) The Administrative Agent, at the request of any Purchaser, will within forty-five (45) days after receipt of notice of any event occurring after the date hereof which will entitle an Indemnified Party to compensation pursuant to this Article II, notify the Transferor in writing of
such event. Any notice by a Purchaser claiming compensation under this Article II and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error, provided that such claim is made in good faith and on a reasonable basis. In determining such amount, the applicable Purchaser or any applicable Indemnified Party may use any reasonable averaging and attributing methods.
(d) If the Transferor is required to pay any additional amount to any Purchaser pursuant to Sections 2.21 or 2.22, then such Purchaser shall use reasonable efforts (which shall not require such Purchaser to incur an unreimbursed loss or unreimbursed cost or expense or otherwise take any action inconsistent with its internal policies or legal or regulatory restrictions or suffer any disadvantage or burden reasonably deemed by it to be significant) (A) to file any certificate or document reasonably requested in writing by the Transferor or (B) to assign its rights and delegate and transfer its obligations hereunder to another of its offices, branches or affiliates, if such filing or assignment would reduce amounts payable pursuant to Sections 2.21 or 2.22, as the case may be, in the future.
SECTION 2.24. Purchasers. Each Purchaser is hereby authorized to record on each Business Day its Funded Amount and the aggregate amount of Discount and Fees accruing with respect thereto on such Business Day. Any such recordations by a Purchaser, absent manifest error, shall constitute prima facie evidence of the accuracy of the information so recorded. Each of the Purchasers will report the amounts due to it for the prior Calculation Period to the Transferor, the Collection Agent and the Administrative Agent not later than two (2) Business Days prior to the related Interim Settlement Date or Monthly Payment Date, as applicable. Furthermore, the Purchaser will maintain records sufficient to identify the percentage interest of such Purchaser in the Receivables and any amounts owing thereunder.
SECTION 2.25. Use of Historical Data. Where necessary to calculate any ratios or other amounts under this Agreement with reference to periods prior to the Initial Incremental Transfer Date, historical data shall be used.
ARTICLE III
Representations and Warranties
SECTION 3.01. Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to the Administrative Agent and the Purchasers that:
(a) Corporate Existence and Power. The Transferor is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Nevada and has all corporate power and all material governmental licenses, authorizations, consents and approvals required to carry on its business in each jurisdiction in which its business is now conducted. The Transferor is duly qualified (or has duly applied for such qualification) to do business in, and is in good standing in, every other jurisdiction in which the nature of its business requires it to be so qualified, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect.
(b) Corporate and Governmental Authorization; Contravention. The execution, delivery and performance by the Transferor of this Agreement and the other Transaction Documents to which the Transferor is a party are within the Transferors corporate powers, have been duly authorized by all necessary corporate action, require no action by or in respect of, or filing with, any Official Body or official thereof, and do not contravene any provision of applicable law, rule or regulation or of the Certificate of Incorporation or Bylaws of the Transferor or constitute a default under any agreement or any judgment, injunction, order, writ, decree or other instrument binding upon the Transferor or result in the creation or imposition of any Adverse Claim on the assets of the Transferor (except as contemplated by Section 2.09 hereof).
(c) Binding Effect. Each of this Agreement and the other Transaction Documents to which the Transferor is a party constitutes the legal, valid and binding obligation of the Transferor, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws affecting the rights of creditors generally and general equitable principles (whether considered in a proceeding at law or in equity).
(d) Perfection. Immediately preceding each Transfer hereunder, the Transferor shall be the owner of all of the Receivables, free and clear of all Adverse Claims (except as contemplated by Section 2.09 hereof and other than Liens for taxes or assessments or other governmental charges payable by the Transferor that are not yet due and payable). On or prior to each Transfer and each recomputation of the Transferred Interest, all financing statements and other documents required to be recorded or filed in order to perfect and protect the Transferred Interest against all creditors of, and purchasers from, the Transferor and the Sellers 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.
(e) Accuracy of Information. All information heretofore furnished by or on behalf of the Transferor or the Collection Agent on its behalf (including, without limitation, the Settlement Statements, any other reports delivered pursuant to the terms of this Agreement and the Transferors financial statements) to any Purchaser or the Administrative Agent for purposes of, or in connection with, this Agreement and the other Transaction Documents are, and all such information hereafter furnished by or on behalf of the Transferor to any Purchaser or the Administrative Agent will be, true and accurate in every material respect, on the date such information is stated or certified.
(f) Tax Status. The Transferor has filed all material tax returns (Federal, state and local) required to be filed and has paid or made adequate provision for the payment of all material taxes, assessments and other governmental charges other than taxes or filings contested in good faith or taxes which are not yet due and payable, and for which adequate reserves have been established in accordance with GAAP consistently applied.
(g) Action, Suits. There are no actions, suits or proceedings pending or, to the knowledge of the Transferor threatened, against or affecting the Transferor or its properties, in or before any court, arbitrator or other Official Body, which could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, except as set forth in the TriMas Corp. Form 10-Q for the period ended September 30, 2009.
(h) Use of Proceeds. No proceeds of any Transfer will be used by the Transferor to acquire any security in any transaction which violates Regulation T, U or X of the Federal Reserve Board.
(i) Jurisdiction of Organization, Etc. The principal place of business and chief executive office of the Transferor are located at the address of the Transferor indicated in Section 10.03 hereof, and the jurisdiction of organization and offices where the Transferor keeps all its Records, are located at the address(es) described on Schedule I to the Receivables Purchase Agreement or such other locations notified to the Administrative Agent in accordance with Section 2.09 hereof in jurisdictions where all action required by Section 2.09 hereof has been taken and completed.
(j) Good Title. Upon each Transfer and each recomputation of the Transferred Interest, the Administrative Agent, on behalf of the Purchasers, shall acquire (A) a valid and perfected first priority undivided percentage ownership interest to the extent of the Transferred Interest or (B) a first priority perfected security interest in each Receivable that exists on the date of such Transfer and recomputation and in the Related Security, Collections and Proceeds with respect thereto, in either case free and clear of any Adverse Claim except as contemplated by Section 2.09 hereof and other than Liens for taxes or assessments or other governmental charges payable by the Transferor that are not yet due and payable.
(k) Trade Names, etc. As of the date hereof: (i) the Transferors chief executive office is located at the address for notices set forth in Section 10.03 hereof; (ii) the Transferor has no subsidiaries or divisions; and (iii) the Transferor has, within the last five (5) years, operated under no trade name, and, within the last five (5) years, has not changed its name, merged with or into or consolidated with any other corporation or been the subject of any proceeding under Title 11, United States Code (Bankruptcy).
(l) Nature of Receivables. Each Receivable (x) represented by the Transferor or the Collection Agent to be an Eligible Receivable (including in any Monthly Report or other report delivered pursuant to Section 2.12 hereof) or (y) included in the calculation of the Net Receivables Balance in fact satisfies at such time the definition of Eligible Receivable.
(m) Coverage Requirement; Amount of Receivables. The Percentage Interest does not exceed the Maximum Percentage Interest. As of November 22, 2009, the aggregate Outstanding Balance of the Receivables in existence was $77,890,000, and the Net Receivables Balance was not less than $59,887,000.
(n) Credit and Collection Policy. Since the Closing Date, there have been no material changes in the Credit and Collection Policy, other than as permitted hereunder. Since the Closing Date, no material adverse change has occurred in the overall rate of collection of the Receivables.
(o) Collections and Servicing. Since September 30, 2009, there has been no material adverse change in the ability of the Collection Agent, the Guarantor, the Sellers, the Transferor or any Subsidiary or Affiliate of any of the foregoing to service and collect the Receivables.
(p) No Termination Event. No event has occurred and is continuing and no condition exists which constitutes a Termination Event or a Potential Termination Event.
(q) Not an Investment Company. The Transferor is not, and is not controlled by, an investment company within the meaning of the Investment Company Act of 1940, as amended, or is exempt from all provisions of such Act.
(r) ERISA. Each of the Transferor and its ERISA Affiliates is in compliance with ERISA except for any noncompliance which would not reasonably be expected to have a Material Adverse Effect, and no lien exists in favor of the Pension Benefit Guaranty Corporation on any of the Receivables.
(s) Lock-Box Accounts. The names and addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts at such Lock-Box Banks, are specified in Exhibit B hereto (or at such other Lock-Box Banks and/or with such other Lock-Box Accounts as have been notified to the Administrative Agent and the Purchasers and for which Lock-Box Agreements have been executed in accordance with Section 2.09(b) hereof and delivered to the Collection Agent). All Obligors have been instructed to make payment to a Lock-Box Account, and only Collections are deposited into a Lock-Box Account.
(t) Bulk Sales. No transaction contemplated hereby or by the Receivables Purchase Agreement requires compliance with any bulk sales act or similar law.
(u) Transfers Under Receivables Purchase Agreement. Each Receivable which has been transferred to the Transferor by any Seller has been purchased by the Transferor from the Seller pursuant to, and in accordance with, the terms of the Receivables Purchase Agreement.
(v) Preference; Voidability. The Transferor shall have given reasonably equivalent value to each Seller in consideration for the transfer to the Transferor of the Receivables and Related Security, Collections and Proceeds with respect thereto from the Seller, and each such transfer shall not have been made for or on account of an antecedent debt owed by the Seller to the Transferor, and no such transfer is or may be voidable under any Section of the Bankruptcy Reform Act of 1978 (11 U.S.C. §§101 et seq.), as amended (the Bankruptcy Code).
(w) Subsidiaries. The Transferor shall not have any subsidiaries.
(x) OFAC. Neither the Transferor nor any of its Affiliates (i) is a Sanctioned Person, (ii) does business in a Sanctioned Country or with a Sanctioned Person in violation of the economic sanctions of the United States administered by OFAC or (iii) does business in such country or with any such agency, organization or person, in violation of the economic sanctions of the United States administered by OFAC.
(y) Fiscal Months. Exhibit C sets forth the first and last days of 36 Fiscal Months beginning with the Fiscal Month preceding the Closing Date.
Any document, instrument, certificate or notice delivered to the Administrative Agent or any Purchaser by the Transferor or any agent of the Transferor hereunder shall be deemed a representation and warranty by the Transferor.
ARTICLE IV
Conditions Precedent
SECTION 4.01. Conditions to Effectiveness. This Agreement shall become effective on the first day on which the Administrative Agent shall have received the following documents, instruments and Fees, all of which shall be in a form and substance acceptable to each Purchaser:
(a) A Certificate of the Secretary or Assistant Secretary of the Transferor in substantially the form of Exhibit J hereto certifying (i) the names and signatures of the officers and employees authorized on its behalf to execute this Agreement and any other documents to be delivered by it hereunder (on which Certificate the Administrative Agent and the Purchasers may conclusively rely until such time as the Administrative Agent shall receive from the Transferor a revised Certificate meeting the requirements of this clause (a)(i)), (ii) a copy of the Transferors Certificate of Incorporation, certified by the Secretary of State of the State of Nevada, (iii) a copy of the Transferors By-Laws, (iv) a copy of resolutions of the Board of Directors of the Transferor approving this transaction and (v) certificates of the Secretary of State of the State of Nevada certifying the Transferors good standing under the laws of the State of Nevada.
(b) A Certificate of the Secretary or Assistant Secretary of each Seller in substantially the form of Exhibit J hereto certifying (i) the names and signatures of the officers and employees authorized on its behalf to execute the Receivables Purchase Agreement and any other documents to be delivered by it (on which Certificate the Administrative Agent and the Purchasers may conclusively rely until such time as the Administrative Agent shall receive from the Seller a revised Certificate meeting the requirements of this clause (b)(i)), (ii) a copy of the Sellers certificate of incorporation, certified by the Secretary of State of the state of such Sellers incorporation, (iii) a copy of the Sellers By-Laws, (iv) a copy of resolutions of the Board of Directors of the Seller approving this transaction and (v) certificates of the Secretary of State of the state of such Sellers incorporation, certifying the Sellers good standing under the laws of such state.
(c) Executed copies of the Lock-Box Agreements relating to each of the Lock-Box Banks and the Lock-Box Accounts.
(d) An opinion of Cahill Gordon & Reindel LLP, special counsel to the Transferor and the Sellers, addressed to the Administrative Agent and the Purchasers, regarding the lack of substantive consolidation in the event of a bankruptcy of TriMas Corp., TriMas LLC or any Seller and true sale between each Seller and the Transferor.
(e) An opinion of Joshua Sherbin, general counsel of TriMas Corp. and TriMas LLC, addressed to the Administrative Agent and the Purchasers.
(f) An executed copy of this Agreement and each other Transaction Document to be executed by the Transferor and the Sellers.
(g) A Monthly Report for the fiscal month ended November 22, 2009.
(h) All Fees required to be paid on or prior to the Closing Date in accordance with the Fee Letter shall have been paid, and all invoiced expenses of the Administrative Agent required to be reimbursed as of the Closing Date shall have been paid.
(i) A complete copy of the Credit Agreement as executed on December 16, 2009, together with all schedules and exhibits thereto, and any amendments to the Security Agreement (as therein defined), each in a form reasonably acceptable to the Administrative Agent, confirming that this Agreement constitutes a Permitted Receivables Financing under and as defined in the Credit Agreement and that the Receivables, Related Security and Collections are not part of the collateral encumbered by such Security Agreement.
(j) The Existing Subordinated Notes (as defined in the Credit Agreement) shall have been refinanced with the notes governed by the Indenture together with other available funds.
(k) Such other documents, instruments, certificates and opinions as the Administrative Agent shall reasonably request.
SECTION 4.02. Conditions to Initial Incremental Transfer. The following shall be additional conditions precedent to the initial Incremental Transfer:
(a) The Transferor shall notify to the Administrative Agent by telecopy, of the proposed Initial Incremental Transfer Date at least one (1) Business Day prior to such proposed Initial Incremental Transfer Date.
(b) Financing statements (Form UCC-1) shall have been filed in the appropriate filing offices naming the Transferor as the debtor, the Administrative Agent, as secured party, and of such other similar instruments or documents as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable under the Relevant UCC of all appropriate jurisdictions or any comparable law to perfect the Administrative Agents security interest in all Receivables, Related Security, Proceeds and Collections.
(c) Financing statements (Form UCC-1 and, as necessary, UCC-3) shall have been filed in the appropriate filing offices naming each Seller as debtor, the Transferor as assignor secured party, and the Administrative Agent, as total assignee of secured party, and of such other similar instruments or documents as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable under the Relevant UCC of all appropriate jurisdictions or any comparable law to perfect the Transferors ownership or security interest in all Receivables, Related Security and Collections.
(d) Termination statements (Form UCC-3) shall have been filed in the appropriate filing offices, if any, necessary to terminate or assign to the Administrative Agent all security interests and other rights of any person in Receivables previously granted by the Transferor.
(e) Termination statements (Form UCC-3) shall have been filed in the appropriate filing offices, if any, necessary to terminate or assign to the Administrative Agent all security interests and other rights of any person in Receivables, Related Security or Proceeds previously granted by the Sellers.
(f) The Administrative Agent shall have received certified copies of requests for information or copies (Form UCC-11) (or a similar search report certified by parties acceptable to the Administrative Agent), dated a date reasonably near the Closing Date, listing all effective financing statements which name the Transferor and any Seller (under their respective present names and any previous names) as debtor and which are filed in jurisdictions in which the filings were made pursuant to item (c), (d), (e) or (f) above together with copies of such financing statements (none of which, except for those filed pursuant to item (c) or (d) or those terminated pursuant to item or (f), shall cover any Receivables, Related Security or Contracts).
(g) An opinion of Cahill Gordon & Reindel LLP, special counsel to the Transferor and the Seller, addressed to the Administrative Agent and the Purchasers regarding the enforceability of the Transaction Documents to which each is a party and other corporate matters.
(h) The Administrative Agent shall have received opinions of special counsel to each Seller and the Transferor in the states of Indiana, Michigan, Ohio and Nevada, respectively, addressed to the Administrative Agent and the Purchasers, regarding perfection and priority of the interest granted by the Seller to the Transferor and the security interest granted by the Transferor to the Administrative Agent.
(i) The Administrative Agent shall have received the most recent unaudited balance sheet of the Transferor certified by its chief financial officer.
(j) The Administrative Agent shall be satisfied, as of the Closing Date, that the sum of (i) Availability under this Agreement plus (ii) undrawn availability under the Credit Agreement is not less than $65,000,000.
SECTION 4.03. Conditions to Each Transfer. Each Transfer shall be subject to the further conditions precedent that (a) the Commitment Expiry Date shall not have occurred; and (b) on the applicable Transfer Date, the following statements shall be true (and acceptance of the proceeds of such Transfer shall be deemed a representation and warranty by Transferor that such statements are then true):
(i) the representations and warranties set forth in Section 3.01 are true and correct in all material respects on and as of the date of such Transfer as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall remain true and correct in all material respects as of such earlier date;
(ii) no event has occurred and is continuing, or would result from such Transfer, that will constitute a Termination Event or a Potential Termination Event; and
(iii) after giving effect to such Transfer and payment of the Transfer Price, the Net Investment will not exceed the Facility Limit and the Percentage Interest will not exceed the Maximum Percentage Interest.
ARTICLE V
Covenants
SECTION 5.01. Affirmative Covenants of the Transferor. At all times from the date hereof to the later to occur of (i) the Termination Date or (ii) the date on which all Commitments have been terminated, the Net Investment has been reduced to zero, all accrued Discount, Fees, Servicing Fees and all other Aggregate Unpaids shall have been paid in full in cash:
(a) Financial Reporting. The Transferor will maintain a system of accounting established and administered in accordance with GAAP consistently applied, and the Transferor and TriMas Corp. will furnish to the Administrative Agent:
(i) Annual Reporting. Within ninety-five (95) days after the close of each Fiscal Year, audited financial statements of TriMas Corp. and unaudited financial statements of the Transferor, prepared in accordance with GAAP consistently applied, in the case of TriMas Corp. on a consolidated basis for TriMas Corp. and its Subsidiaries, including balance sheets as of the end of such period, related statements of operations, shareholders equity and cash flows, accompanied by (in the case of TriMas Corp.) an audit report certified by KPMG LLP or other nationally recognized independent certified public accountants (without a going concern or like qualification or exception and without any qualification or exception as to the scope of the audit), acceptable to the Administrative Agent, prepared in accordance with generally accepted auditing standards and any management letter prepared by said accountants (it being understood that TriMas Corp.s obligation to furnish its audited financial statements to the Administrative Agent but not its obligation to furnish such management letter shall be deemed to be satisfied by the filing of TriMas Corp.s Form 10-K for such Fiscal Year with the Commission).
(ii) Quarterly Reporting. Within fifty (50) days after the close of the first three (3) quarterly periods of each Fiscal Year, for (x) the Transferor and (y) for TriMas Corp. and its Subsidiaries, on a consolidated basis, unaudited balance sheets as at the close of each such period and related statements of operations, shareholders equity and cash flows in each case for the period from the beginning of such Fiscal Year to the end of such quarter, in the case of the Transferor, certified by its senior financial officer (it being understood that TriMas Corp.s obligation to furnish its quarterly financial statements to the Administrative Agent shall be deemed to be satisfied by the filing of TriMas Corp.s Form 10-Q for such fiscal quarter with the Commission).
(iii) Compliance Certificate. Together with the financial statements required hereunder, a compliance certificate signed by the Transferors chief financial officer stating that (x) the attached financial statements have been prepared in accordance with
GAAP consistently applied and accurately reflect the financial condition of the Transferor or TriMas Corp., as applicable, and (y) to the best of such Persons knowledge, no Termination Event or Potential Termination Event exists, or if any Termination Event or Potential Termination Event exists, stating the nature and status thereof.
(iv) Notice of Termination Events or Potential Termination Events. As soon as possible and in any event within two (2) Business Days after the actual knowledge of a Responsible Officer of the Transferor of the occurrence of each Termination Event or each Potential Termination Event, a statement of the chief financial officer of the Transferor setting forth details of such Termination Event or Potential Termination Event and the action which the Transferor has taken or proposes to take with respect thereto.
(v) Change in Credit and Collection Policy. Within ten (10) Business Days after the date any material change in or amendment to the Credit and Collection Policy is made, a copy of the Credit and Collection Policy then in effect indicating such change or amendment.
(vi) Credit and Collection Policy. Within ninety (90) days after the close of each Fiscal Year beginning with the close of the 2010 Fiscal Year, a complete copy of the Credit and Collection Policy then in effect.
(vii) ERISA. Promptly after the filing or receiving thereof, copies of all reports and notices with respect to any reportable event (as defined in Article IV of ERISA) which the Transferor, any of the Sellers or any ERISA Affiliate of the Transferor or the Sellers files under ERISA with the Internal Revenue Service, the Pension Benefit Guaranty Corporation or the U.S. Department of Labor or which the Transferor, any of the Sellers or any ERISA Affiliates of the Transferor or the Sellers receives from the Internal Revenue Service, the Pension Benefit Guaranty Corporation or the U.S. Department of Labor.
(viii) Other Information. Such other information (including non-financial information) as the Administrative Agent may from time to time reasonably request with respect to the Sellers, the Collection Agent, the Transferor or any Subsidiary of any of the foregoing.
(ix) Settlement Statements. Each Settlement Statement when and as required by Section 2.12.
(x) Appointment of Independent Director. Not less than 10 days prior to the appointment of any replacement or additional Independent Director, notice of the proposed appointee, together with a certificate of a Responsible Officer of the Transferor certifying that such candidate satisfies the criteria set forth in the definition of Independent Director in this Agreement.
(xi) Information, Reports and Certificates under Credit Agreement. Simultaneously with the delivery to the administrative agent under the Credit Agreement, copies of any and all financial statements, budgets, projections, Parent Compliance
Certificates, accountants certificates, proxy statements and other information delivered by TriMas Corp. or Guarantor pursuant to Section 5.01 of the Credit Agreement, copies of the same (it being understood that such obligation to furnish the foregoing to the Administrative Agent shall be deemed to be satisfied by the filing of any such information with the Commission).
(b) Conduct of Business. The Transferor will 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, validly existing and in good standing as a domestic corporation in its jurisdiction of incorporation and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted except any jurisdictions where the failure to maintain such authority could not reasonably be expected to have a Material Adverse Effect.
(c) Compliance with Laws. The Transferor will, and will cause each Seller and each of the Transferors and such Sellers Affiliates to, comply with all laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it or its respective properties may be subject, except to the extent that the failure to so comply with such laws, rules, regulations, writs, judgments, injunctions, decrees or awards would not materially adversely affect the ability of the Transferor to perform its obligations under this Agreement.
(d) Furnishing of Information and Inspection of Records. The Transferor will, and will cause each Seller to, furnish to the Administrative Agent from time to time such information with respect to the Receivables as the Administrative Agent may reasonably request, including, without limitation, listings identifying the Obligor and the Outstanding Balance for each Receivable, together with an aging of Receivables. The Transferor will, and will cause each Seller to, at any time and from time to time during regular business hours and upon reasonable notice and permit the Administrative Agent, the Purchasers, 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 the Transferor and the Sellers for the purpose of examining such Records, and to discuss matters relating to Receivables or the Transferors and the Sellers performance hereunder and under the other Transaction Documents to which such Person is a party with any of the officers or employees of the Transferor and the Sellers having knowledge of such matters (each such visit, a Review); provided that there shall be no more than two Reviews in any calendar year unless a Potential Termination Event or Termination Event has occurred and is continuing. The Transferor agrees to pay all reasonable out-of-pocket expenses incurred by the Administrative Agent, including, without limitation, the cost of any auditors or other independent contractors participating in a Review (collectively, Review Costs) in connection with (x) the first Review in each calendar year, (y) if the Administrative Agent determines that the first Review in any calendar year reveals material reporting inaccuracies, the Transferor agrees to pay the Review Costs associated with a second Review in such calendar year, and (z) if any Potential Termination Event or Termination Event exists and is continuing, the number of Reviews in any calendar year shall not be limited, and the Transferor agrees to pay the Review Costs associated with all Reviews in such calendar year.
(e) Keeping of Records and Books of Account. The Transferor will, and will cause each Seller to, 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, all documents, books, records and other information reasonably necessary or advisable for the collection of all Receivables (including, without limitation, records adequate to permit the daily identification of each new Receivable and all Collections of and adjustments to each existing Receivable). The Transferor will, and will cause each Seller to, give the Administrative Agent and each of the Purchasers, prompt notice of any change in the administrative and operating procedures of the Transferor or such Seller, as applicable, referred to in the previous sentence to the extent such change may have a Material Adverse Effect.
(f) Performance and Compliance with Contracts. The Transferor, at its expense, will instruct the Collection Agent to, and to the extent applicable, timely and fully perform and comply with all material provisions, covenants and other promises required to be observed by the Transferor under the Contracts related to the Receivables.
(g) Credit and Collection Policies. The Transferor will instruct the Collection Agent and the Sellers to comply in all material respects with the Credit and Collection Policy in regard to each Receivable and the related Contract.
(h) Collections. The Transferor shall instruct the Collection Agent and the Sellers to instruct all Obligors to cause all Collections (other than Collections remitted directly) to be deposited directly to a Lock-Box Account.
(i) Collections Received. The Transferor shall, and shall instruct the Collection Agent and the Sellers to, hold in trust, and deposit immediately (but in any event no later than one (1) Business Day following receipt thereof) to a Lock-Box Account all Collections received from time to time by the Transferor, the Collection Agent and the Sellers.
(j) Sale Treatment. The Transferor will not (i) account for (including for accounting purposes), or otherwise treat, the transactions contemplated by the Receivables Purchase Agreement in any manner other than as a sale of Receivables by the Sellers to the Transferor, or (ii) account for (other than for tax purposes) or otherwise treat the transactions contemplated hereby in any manner other than as a sale of Receivables by the Transferor to the Purchasers. In addition, the Transferor shall disclose (in a footnote or otherwise) in all of its financial statements (including any such financial statements consolidated with any other Persons financial statements) the existence and nature of the transaction contemplated hereby and by the Receivables Purchase Agreement and the interest of the Transferor and the Purchasers in the Receivables and Related Security, Collections and Proceeds with respect thereto.
(k) Separate Business. The Transferor shall not engage in any business not permitted by its Certificate of Incorporation as in effect on the Closing Date.
(l) Corporate Documents. The Transferor shall only amend, alter, change or repeal its Certificate of Incorporation or the By-laws with the prior written consent of the Administrative Agent which shall not be unreasonably withheld.
(m) Net Worth. The Transferor on the Initial Incremental Transfer Date has a net worth, and thereafter maintain at all times a net worth (as defined in accordance with GAAP), of at least $25,000,000.
(n) Separate Corporate Existence. The Transferor shall:
(i) Maintain its own deposit account or accounts, separate from those of any Affiliate, with commercial banking institutions and use its commercially reasonable efforts to ensure that the funds of the Transferor will not be diverted to any other Person or for other than corporate uses of the Transferor and that, except as contemplated by Section 6.02(b) such funds will not be commingled with the funds of any Seller or any Subsidiary or Affiliate of the Sellers;
(ii) To the extent that it shares the same officers or other employees as any of its stockholders or Affiliates, fairly allocate among such entities the salaries of and the expenses related to providing benefits to such officers and other employees, 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 any of its stockholders or Affiliates to do business with vendors or service providers or to share overhead expenses, fairly allocate among such entities the costs incurred in so doing, and each such entity shall bear its fair share of such costs. To the extent that the Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities 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 Transferor and any of its Affiliates, whether currently existing or hereafter entered into, only on an arms 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 Sellers and any Affiliates of the Sellers. To the extent that the Transferor and any of its stockholders or Affiliates 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 unaudited financial statements prepared not less frequently than quarterly and prepared in accordance with GAAP consistently applied;
(vii) Conduct its affairs strictly in accordance with its articles of incorporation and observe all necessary, appropriate and customary corporate formalities, including, but not limited to, holding all regular and special stockholders and directors meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to
be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(viii) Not assume or guarantee any of the liabilities of the Sellers or any Affiliate thereof;
(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 ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct with respect to the Transferor and (y) comply with those procedures described in such provisions which are applicable to the Transferor;
(x) Take such actions as are necessary to ensure that not less than one member of Transferors Board of Directors shall be an individual who (1) is not, and never has been, a direct, indirect or beneficial stockholder, officer, director, employee, affiliate, associate, material supplier or material customer of the Collection Agent or any of its Affiliates, and (2) has experience as an independent director for a corporation whose charter documents required the unanimous consent of all independent directors thereof before such corporation could consent to the institution of bankruptcy or insolvency proceeding against it or before it could file a petition seeking relief under any applicable federal or state law relating to bankruptcy or insolvency, and (3) has at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities (each, an the Independent Director). The certificate of incorporation of the Transferor shall provide that (i) at least one member of the Transferors Board of Directors shall be an Independent Director, (ii) at any time while this Agreement remains in effect or any Aggregate Unpaids remain outstanding, no Person shall be appointed as a replacement Independent Director without at least 10 days prior written notice of the proposed replacement having been given to the Administrative Agent and the Administrative Agent having confirmed in writing that the proposed replacement conforms, in the reasonable judgment of the Administrative Agent, to the criteria set forth above in the definition of Independent Director, (iii) the Transferors Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Transferor unless a unanimous vote of the Transferors Board of Directors (which vote shall include the affirmative vote of each Independent Director) shall approve the taking of such action in writing prior to the taking of such action and (iv) the provisions requiring an Independent Director and the provision described in clauses (i)-(iii) of this paragraph cannot be amended without the prior written consent of each Independent Director;
(xi) Take such actions as are necessary to ensure that no Independent Director shall at any time serve as a trustee in bankruptcy for the Transferor or any Affiliate thereof;
(xii) Take such actions as are necessary to ensure that the books of account, financial reports and corporate records of the Transferor will be maintained separately from those of TriMas Corp., TriMas LLC and each other Affiliate of the Transferor;
(xiii) Take such actions as are necessary to ensure that any financial statements of TriMas Corp. or Affiliate thereof which are consolidated to include the Transferor will contain detailed notes clearly stating that (A) all of the Transferors assets are owned by the Transferor, and (B) the Transferor is a separate corporate entity with its own separate creditors that will be entitled to be satisfied out of the Transferors assets prior to any value in the Transferor becoming available to the Transferors equity holders; and the accounting records and the published financial statements of the Sellers will clearly show that, for accounting purposes, the Receivables and Related Security have been sold to the Transferor;
(xiv) Take such actions as are necessary to ensure that the Transferors assets will be maintained in a manner that facilitates their identification and segregation from those of TriMas Corp., the Sellers and other Affiliates of TriMas Corp.;
(xv) Take such actions as are necessary to ensure that no Affiliates of the Transferor shall, directly or indirectly, name the Transferor or enter into any agreement to name the Transferor a direct or contingent beneficiary or loss payee or any insurance policy covering the property of any such Affiliate; and
(xvi) Take such actions as are necessary to ensure that no Affiliate of the Transferor will be, nor will hold itself out to be, responsible for the debts of the Transferor or the decisions or actions in respect of the daily business and affairs of the Transferor. The Transferor will immediately correct any known misrepresentation with respect to the foregoing, and the Transferor and its Affiliates will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity.
(o) Enforcement of Receivables Purchase Agreement. The Transferor shall use its best efforts to enforce all rights held by it under the Receivables Purchase Agreement and shall not waive any breach of any covenant contained in Section 5.01 thereunder.
SECTION 5.02. Negative Covenants of the Transferor. At all times from the date hereof until the date on which all Commitments have been terminated, the Net Investment has been reduced to zero, and all accrued Discount, Fees, Servicing Fees and all other Aggregate Unpaids shall have been paid in full in cash:
(a) No Sales, Liens, etc. Except as otherwise provided herein and in the Receivables Purchase Agreement, the Transferor will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any Adverse Claim (other than Liens for taxes, assessments or other governmental charges that are not yet due and payable) upon, or the filing of any financing statement with respect to, (x) any of the Receivables or Related Security, or (y) any Lock-Box Account.
(b) No Extension or Amendment of Receivables. Except as otherwise permitted in Section 6.02 hereof, the Transferor will not, and will not permit any Seller to, extend, amend or otherwise modify the terms of any Receivable, or amend, modify or waive any term or condition of any Contract related thereto.
(c) No Change in Business or Credit and Collection Policy. The Transferor will not, and will not permit any Seller to, make any change in the character of its business or in the Credit and Collection Policy that could reasonably be expected to have a Material Adverse Effect.
(d) No Mergers, etc. The Transferor will not without the prior written consent of the Administrative Agent, and except as otherwise permitted pursuant to the Receivables Purchase Agreement, will not permit any Seller to, (i) consolidate or merge with or into any other Person, or (ii) sell, lease or transfer all or substantially all of its assets to any other Person, provided that 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 whom the Seller is merged or consolidated is an Affiliate and the surviving corporation 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.
(e) Change in Payment Instructions to Obligors; Deposits to Lock-Box Accounts; Notice of Legal Process Against Lock-Box Account. The Transferor will not, and will not permit any Seller to, add or terminate any bank as a Lock-Box Bank or any account as a Lock-Box Account to or from those listed in Exhibit B hereto or make any change in its instructions to Obligors regarding payments to be made to any Lock-Box Account, unless (i) such instructions are to deposit such payments to another existing Lock-Box Account or (ii) the Administrative Agent shall have received written notice of such addition, termination or change at least thirty (30) days prior thereto and the Administrative Agent shall have received a Lock-Box Agreement executed by each new Lock-Box Bank or an existing Lock-Box Bank with respect to each new Lock-Box Account, as applicable. The Transferor will not deposit or otherwise credit, or cause or permit to be so deposited or credited, to any Lock-Box Account cash or cash proceeds other than Collections of Receivables. However, in the event any Seller deposits or otherwise credits, or cause or permits to be so deposited or credited, to any Lock-Box Account, cash or cash proceeds other than Collections of Receivables, the Transferor shall, or shall cause such Seller to, segregate or cause to be segregated any such cash or cash proceeds from Collections within one (1) Business Day following the deposit or credit to any Lock-Box Account. Promptly after a Responsible Officer of the Transferor or the Collection Agent receives notice or becomes aware that a lien, writ, garnishment or other legal process has been filed against the Transferor, TriMas Corp., the Collection Agent, any Seller or any Lock- Box Bank with respect to a Lock-Box Account or Lock-Box Agreement, the Transferor or the Collection Agent, as applicable, will notify the Administrative Agent thereof.
(f) Change of Name, etc. The Transferor will not, and will not permit a Seller to, change its name, jurisdiction of organization, form of organization, taxpayer identification number or state organizational number, unless at least ten (10) days prior to the effective date of any such change the Transferor delivers to the Administrative Agent (i) such documents,
instruments or agreements, executed by the Transferor as are necessary to reflect such change and to continue the perfection of the Administrative Agents ownership interests or security interests in the Receivables and Related Security, Collections and Proceeds with respect thereto and (ii) new or revised Lock-Box Agreements executed by the Lock-Box Banks which reflect such change and enable the Administrative Agent to continue to exercise its rights contained in Section 2.09 hereof.
(g) Amendment to Receivables Purchase Agreement. The Transferor will not, and will not permit any of the Sellers to, amend, modify, or supplement the Receivables Purchase Agreement, except with the prior written consent of the Administrative Agent; nor shall the Transferor take, or permit any of the Sellers to take, any other action under the Receivables Purchase Agreement that shall have a material adverse affect on the Administrative Agent or any Purchaser or which is inconsistent with the terms of this Agreement.
(h) Other Debt. Except as provided for herein or in the Receivables Purchase Agreement, the Transferor will not create, incur, assume or suffer to exist any indebtedness whether current or funded, or any other liability other than (i) indebtedness of the Transferor representing fees, expenses and indemnities arising hereunder or under the Receivables Purchase Agreement (including the Subordinated Note) for the purchase price of the Receivables under the Receivables Purchase Agreement; (ii) other indebtedness incurred in the ordinary course of its business to the extent permitted by or required under any other Transaction Document and (iii) additional indebtedness in an amount not to exceed $13,474 at any time outstanding.
(i) ERISA Matters. The Transferor will not, and will not permit any Seller to, (i) 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; (ii) 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) fail to make any payments to any Multiemployer Plan that the Transferor or any ERISA Affiliate of the Transferor is required to make under the agreement relating to such Multiemployer Plan or any law pertaining thereto; (iv) terminate any Benefit Plan so as to result in any liability to the Pension Benefit Guaranty Corporation; or (v) permit to exist any occurrence of any reportable event described in Title IV of ERISA which represents a material risk of a liability to the Transferor or any ERISA Affiliate of the Transferor under ERISA or the Code, if such prohibited transactions, accumulated funding deficiencies, failure to make payments, terminations and reportable events occurring within any Fiscal Year in the aggregate, involve a payment of money or an incurrence of liability by the Transferor or any ERISA Affiliate of the Transferor in an amount which would reasonably be expected to have a Material Adverse Effect.
(j) Payment to the Sellers. With respect to any Receivable sold by the Sellers to the Transferor, the Transferor shall, and shall cause the Sellers to, effect such sale under, and pursuant to the terms of, the Receivables Purchase Agreement, including, without limitation, the payment by the Transferor either in cash or by increase in the amount of the Subordinated Note of an amount equal to the purchase price for such Receivable as required by the terms of the Receivables Purchase Agreement.
ARTICLE VI
Administration and Collections
SECTION 6.01. Appointment of Collection Agent. The servicing, administering and collection of the Receivables shall be conducted by such Person (the Collection Agent) so designated from time to time in accordance with this Section 6.01. Until the Administrative Agent (at the direction of the Required Purchasers) gives notice to TriMas Corp. of the designation of a new Collection Agent pursuant to this Section 6.01, TriMas Corp. is hereby designated as, and hereby agrees to perform the duties and obligations of, the Collection Agent pursuant to the terms hereof. The Collection Agent may not delegate any of its rights, duties or obligations hereunder, or designate a substitute Collection Agent, without the prior written consent of the Administrative Agent; provided that TriMas Corp. shall be permitted to delegate its duties and obligations as Collection Agent hereunder to the Sellers, or any of TriMas Corp.s Affiliates or stockholders, but such delegation shall not relieve TriMas Corp. of its duties and obligations as Collection Agent hereunder. The Administrative Agent may, and upon the direction of the Required Purchasers the Administrative Agent shall, but only after the occurrence of a Collection Agent Default or any other Termination Event, designate as Collection Agent any Person (including itself) to succeed TriMas Corp. or any successor Collection Agent, on the condition in each case that any such Person so designated shall agree to perform the duties and obligations of the Collection Agent pursuant to the terms hereof. Following a Collection Agent Default or a Termination Event, the Administrative Agent may notify any Obligor of the designation of a successor Collection Agent.
SECTION 6.02. Duties of Collection Agent. (a) The Collection Agent shall take or cause to be taken all such action as may be necessary or advisable to collect each Receivable from time to time, all in accordance with applicable laws, rules and regulations, with reasonable care and diligence, and in accordance with the Credit and Collection Policy. Each of the Transferor, the Purchasers and the Administrative Agent, hereby appoints as its agent the Collection Agent, from time to time designated pursuant to Section 6.01 hereof, to enforce its respective rights and interests in and under the Receivables and Related Security, Collections and Proceeds with respect thereto. To the extent permitted by applicable law, the Transferor hereby grants to any Collection Agent appointed hereunder an irrevocable power of attorney to take in the Transferors name and on behalf of the Transferor any and all steps necessary or desirable, in the reasonable determination of the Collection Agent, to collect all amounts due under any and all Receivables, including, without limitation, endorsing the Transferors name on checks and other instruments representing Collections and enforcing such Receivables and the related Contracts. The Collection Agent shall set aside for the account of the Transferor and the Purchasers their respective allocable shares of the Collections of Receivables in accordance with Sections 2.05 and 2.06 hereof. The Collection Agent shall segregate and deposit to the Administrative Agents Account each Purchasers allocable share of Collections of Receivables when required pursuant to Article II hereof. The Collection Agent shall, and shall cause the Sellers to, hold in trust for the Transferor, the Purchasers and the Administrative Agent, in accordance with their respective interests, all Records which evidence or relate to Receivables, Related Security or Collections. Notwithstanding anything to the contrary contained herein, the Administrative Agent shall have the absolute and unlimited right to direct the Collection Agent (whether the Collection Agent is TriMas Corp. or any other Person) to commence or settle any
legal action to enforce collection of any Receivable or to foreclose upon or repossess any Related Security. The Collection Agent shall not make the Administrative Agent or any of the Purchasers a party to any litigation without the prior written consent of such Person.
(b) The Collection Agent shall, as soon as practicable following receipt thereof, segregate any funds deposited in a Lock-Box Account or otherwise commingled and not attributable to a Receivable within one (1) Business Day of receipt thereof and remit such funds to the appropriate Person. If the Collection Agent is not the Transferor, TriMas Corp., any Seller, or an Affiliate of the Transferor or the Sellers, the Collection Agent, by giving three (3) Business Days prior written notice to the Administrative Agent, may revise the Servicing Fee; provided that such revised Servicing Fee shall be a reasonable fee agreed upon by the Collection Agent and the Administrative Agent reflecting rates and terms prevailing at such time as would be negotiated on an arms-length basis. The Collection Agent, if other than the Transferor, TriMas Corp., any Seller, TriMas Corp. stockholder or an Affiliate of the Transferor or the Sellers, shall as soon as practicable upon demand, deliver to the applicable Seller all Records in its possession which evidence or relate to indebtedness of an Obligor which is not a Receivable.
(c) [Intentionally Omitted]:
(d) Notwithstanding anything to the contrary contained in this Article VI, the Collection Agent, if not the Transferor, TriMas Corp., any Seller or any Affiliate of the Transferor or the Sellers, shall have no obligation to collect, enforce or take any other action described in this Article VI with respect to any indebtedness that is not included in the Transferred Interest other than to deliver to the Transferor the collections and documents with respect to any such indebtedness as described in Section 6.02(b) hereof.
SECTION 6.03. Rights After Designation of New Collection Agent. At any time following the designation of a Collection Agent other than TriMas Corp., any Seller or the Transferor pursuant to the penultimate sentence of Section 6.01 hereof:
(i) the Administrative Agent may, at its option, or shall, at the direction of the Required Purchasers, direct that payment of all amounts payable under any Receivable be made directly to the Administrative Agent or its designee for the benefit of the Purchasers;
(ii) the Transferor shall, at the Administrative Agents request and at the Transferors expense, give notice of the Transferors and/or the Purchasers ownership of Receivables to each Obligor and direct that payments be made directly to the Administrative Agent or its designee;
(iii) the Transferor shall, at the Administrative Agents request, (A) assemble all of the Records, and shall make the same available to the Administrative Agent or its designee at a place selected by the Administrative Agent or its designee, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Receivables in a manner acceptable to the Administrative Agent and shall, promptly upon receipt, remit all such cash, checks and instruments, duly
endorsed or with duly executed instruments of transfer, to the Administrative Agent or its designee; and
(iv) the Transferor hereby authorizes the Administrative Agent to take any and all steps in the Transferors name and on behalf of the Transferor necessary or desirable, in the determination of the Administrative Agent, to collect all amounts due under any and all Receivables, including, without limitation, endorsing the Transferors name on checks and other instruments representing Collections and enforcing such Receivables and the related Contracts.
SECTION 6.04. Representations and Warranties of the Collection Agent. The Collection Agent represents and warrants (solely as to itself) to the Administrative Agent and each Purchaser as of the date it becomes a Collection Agent hereunder that:
(a) Corporate Existence and Power. The Collection Agent is a corporation duly organized, validly existing and in good standing under the laws of its respective jurisdiction of incorporation and has all corporate power and all material governmental licenses, authorizations, consents and approvals required to carry on its business in each jurisdiction in which its business is now conducted, except where the failure to obtain such licenses, authorizations, consents and approvals would not have a Material Adverse Effect. The Collection Agent is duly qualified to do business in, and is in good standing in, every other jurisdiction in which the nature of its business requires it to be so qualified, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect.
(b) Corporate and Governmental Authorization, Contravention. The execution, delivery and performance by the Collection Agent of this Agreement (i) are within the Collection Agents corporate powers, (ii) have been duly authorized by all necessary corporate action on the Collection Agents part, (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 as required by this Agreement or as have been taken or filed and, with respect to filings other than UCC financing statements, 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 organizational documents of the Collection Agent or of any agreement or other material instrument binding upon the Collection Agent, except where such contravention or default would not have a Material Adverse Effect, or (v) result in the creation or imposition of any Adverse Claim on the assets of the Collection Agent or any of its Affiliates (except those created by the Transaction Documents).
(c) Binding Effect. This Agreement constitutes the legal, valid and binding obligations of the Collection Agent, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium or other similar laws affecting the rights of creditors generally and general equitable principles (whether considered in a proceeding at law or in equity).
(d) Action, Suits. Except as set forth in the TriMas Corp. Form 10-Q for the period ended September 30, 2009, there are no actions, suits or proceedings pending, or to the knowledge of the Collection Agent, threatened, against the Collection Agent, or any Affiliate of
the Collection Agent, or its respective properties, in or before any court, arbitrator or other body, which could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(e) OFAC. Neither the Collection Agent nor any of its Affiliates (i) is a Sanctioned Person, (ii) does business in a Sanctioned Country or with a Sanctioned Person in violation of the economic sanctions of the United States administered by OFAC or (iii) does business in such country or with any such agency, organization or person, in violation of the economic sanctions of the United States administered by OFAC.
SECTION 6.05. Covenants of the Collection Agent. At all times from the date hereof to the date on which all Commitments have been terminated, the Net Investment has been reduced to zero, and all accrued Discount, Fees, Servicing Fees and all other Aggregate Unpaids have been paid in full in cash:
(a) Credit and Collection Policy. The Collection Agent will comply in all material respects with the Credit and Collection Policy in regard to each Receivable and the related Contract.
(b) Collections Received. The Collection Agent shall hold in trust, and deposit as soon as reasonably practicable (but in any event no later than one Business Day following its receipt thereof) to a Lock-Box Account all Collections received from time to time by the Collection Agent.
(c) Notice of Termination Events, Potential Termination Events or Collection Agent Defaults. Immediately, and in any event within one (1) Business Day after the Collection Agent obtains knowledge of the occurrence of each Termination Event, Potential Termination Event or Collection Agent Default, the Collection Agent will furnish to the Administrative Agent and each Purchaser a statement of a Responsible Officer of the Collection Agent setting forth details of such Termination Event, Potential Termination Event or Collection Agent Default, and the action which the Collection Agent, the Transferor or a Seller proposes to take with respect thereto.
(d) Conduct of Business. The Collection Agent will do all things necessary to remain duly incorporated, validly existing and in good standing as a domestic corporation in its jurisdiction of incorporation and 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 would have a Material Adverse Effect.
(e) Compliance with Laws. The Collection Agent will comply in all respects with all Laws with respect to the Receivables to the extent that any non-compliance would have a Material Adverse Effect.
(f) Further Information. The Collection Agent shall furnish or cause to be furnished to the Administrative Agent and, after a Termination Event or a Potential Termination Event, any Purchaser, such other information relating to the Receivables and readily available public information regarding the financial condition of the Collection Agent, as soon as reasonably practicable, and in such form and detail, as the Administrative Agent may reasonably request
and, after a Termination Event or a Potential Termination Event, as any Purchaser may reasonably request.
SECTION 6.06. Negative Covenants of the Collection Agent. At all times from the date hereof to the date on which all Commitments have been terminated, the Net Investment has been reduced to zero, and all accrued Discount, Fees, Servicing Fees and all other Aggregate Unpaids have been paid in full in cash:
(a) No Sales, Liens, Etc. Except as otherwise provided herein, in the Receivables Purchase Agreement, in the Credit Agreement and in the Indenture, the Collection Agent will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or create any Adverse Claim upon (or file any financing statement) or with respect to (x) any of the Receivables, Related Security, Collections or Proceeds with respect thereto, (y) any Lock-Box Account (or any other account referred to in Section 5.01(i) to which any Collections of any Receivables are sent, or assign any right to receive income in respect thereof, or (z) grant any Adverse Claim or file any financing statement (other than those granted in the Transaction Documents) on or with respect to any inventory or goods, the sale of which may give rise to a Receivable or a Collection.
(b) Consolidations, Mergers and Sales of Assets. The Collection Agent shall not without the prior written consent of the Administrative Agent, (i) consolidate or merge with or into any other Person or (ii) sell, lease or otherwise transfer all or substantially all of its assets to any other Person; provided that the Collection Agent may consolidate or merge with another Person if (A)(1) the Collection Agent is the corporation surviving such consolidation or merger or (2) the Person into or with whom the Collection Agent is merged or consolidated is an Affiliate and the surviving corporation assumes in writing all duties and liabilities of the Collection Agent hereunder 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.
(c) Lock-Box Accounts. Except as permitted pursuant to Section 2.09(b) of this Agreement or as otherwise permitted under or required by the Transaction Documents, the Collection Agent shall not make, or cause or permit any other Person to make any transfer of funds on deposit in a Lock-Box Account.
(d) Modifications of Receivables or Contracts. The Collection Agent shall not extend, amend, forgive, discharge, compromise, waive, cancel or otherwise modify the terms of any Receivable or amend, modify or waive any term or condition of any Contract related thereto; provided that the Collection Agent may take such actions as are expressly permitted by the terms of any Transaction Document and are in accordance with the Credit and Collection Policy.
SECTION 6.07. Collection Agent Default. The occurrence of any one or more of the following events shall constitute a Collection Agent default (each, a Collection Agent Default):
(a) (i) the Collection Agent or, to the extent that the Transferor, TriMas Corp., any Seller or any Affiliate of the Transferor or the Sellers is then acting as Collection Agent, the
Transferor, TriMas Corp., such Seller or such Affiliate, as applicable, shall fail to observe or perform any material term, covenant or agreement hereunder (other than as referred to in clauses (ii) and (iii) of this Section 6.07(a)), and such failure shall remain unremedied for ten (10) days, after a Responsible Officer of the Collection Agent has knowledge thereof or (ii) the Collection Agent or, to the extent that the Transferor, TriMas Corp., any Seller or any Affiliate of the Transferor or the Sellers is then acting as Collection Agent, the Transferor, TriMas Corp., such Seller or such Affiliate, as applicable, shall fail to make any payment or deposit required to be made by it hereunder when due and such failure remains uncured for one (1) Business Day or the Collection Agent shall fail to observe or perform in any material respect any term, covenant or agreement on the Collection Agents part to be performed under Section 2.09(b) hereof, or (iii) the Collection Agent fails to deliver any Settlement Statement within two (2) Business Days of the date when due; or
(b) any representation, warranty, certification or statement made by the Collection Agent in this Agreement, any other Transaction Document or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made; provided that no such event shall constitute a Collection Agent Default unless such event shall continue unremedied for a period of ten (10) days from the date a Responsible Officer of the Collection Agent obtains knowledge thereof; or
(c) the Collection Agent or any of its Subsidiaries shall fail to make any payment of principal or interest in respect of any Indebtedness evidencing an aggregate outstanding principal amount exceeding $15,000,000, when and as the same shall become due and payable after giving effect to any applicable grace period with respect thereto; or any event or condition occurs that results in any such Indebtedness becoming due prior to its scheduled maturity or that enables or permits the holder or holders of any such Indebtedness or any trustee or agent on its or their behalf to cause any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (c) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; or
(d) an involuntary proceeding described under clause (ii) of the definition of Event of Bankruptcy shall occur and be continuing for sixty (60) days, or any other Event of Bankruptcy shall occur and be continuing, in each case with respect to the Collection Agent or any of its Subsidiaries; or
(e) a Change of Control shall have occurred; or
(f) there shall have occurred any event which, in the commercially reasonable judgment of the Administrative Agent and the Required Purchasers materially and adversely affects the Collection Agents ability to collect the Receivables under this Agreement.
SECTION 6.08. Responsibilities of the Transferor and the Sellers. Anything herein to the contrary notwithstanding, the Transferor shall, and/or shall cause each Seller to, (i) perform all of such Sellers obligations under the Contracts related to the Receivables to the same extent as if interests in such Receivables had not been sold hereunder and under the Receivables Purchase Agreement and the exercise by the Administrative Agent and the
Purchasers of their rights hereunder and under the Receivables Purchase Agreement shall not relieve the Transferor or the Seller from such obligations and (ii) pay when due any taxes, including without limitation, any sales taxes payable in connection with the Receivables and their creation and satisfaction. Neither the Administrative Agent nor any of the Purchasers shall have any obligation or liability with respect to any Receivable or related Contracts, nor shall it be obligated to perform any of the obligations of the Seller thereunder.
ARTICLE VII
Termination Events
SECTION 7.01. Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) TriMas Corp., TriMas LLC, the Transferor, any Seller or the Collection Agent shall fail to make any payment or deposit to be made by it hereunder or under any of the Transaction Documents when due hereunder or thereunder and such failure continues for one (1) Business Day; or
(b) any representation, warranty, certification or statement made by TriMas Corp., the Transferor, the Collection Agent or any Seller in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made; provided that no such event shall constitute a Termination Event unless such event shall continue unremedied for a period of ten (10) days from the date a Responsible Officer of the Transferor obtains knowledge thereof; provided, further, that no grace period shall apply to Sections 3.01(c), 3.01(d), 3.01(j), 3.01(r) and 3.01(s) of this Agreement (and, for the avoidance of doubt, the cure period described in the first proviso of this Section 7.01(b) shall not apply to payments required to be made pursuant to Section 2.10(b)); and provided, further, that no such event shall constitute a Termination Event if the Transferor shall have timely paid to the Collection Agent the Deemed Collection required to be paid as a result of such event in accordance with Section 2.10(b); or
(c) TriMas Corp., the Transferor, any Seller or the Collection Agent shall default in the performance of any payment, covenant or other undertaking (other than those covered by clause (a) above or clause (h) below) under any Transaction Document and such default shall continue for ten (10) days after a Responsible Officer of TriMas Corp., TriMas LLC, the Transferor or the Collection Agent has knowledge thereof; or
(d) the Transferor shall fail to make any payment of principal or interest in respect of any Indebtedness when and as the same shall become due and payable after giving effect to any applicable grace period with respect thereto; or any event or condition occurs that results in any such Indebtedness becoming due prior to its scheduled maturity or that enables or permits the holder or holders of any such Indebtedness or any trustee or agent on its or their behalf to cause any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; or
(e) any Event of Bankruptcy shall occur with respect to the Transferor, the Collection Agent, any Seller, TriMas Corp., or any of its Subsidiaries; or
(f) after the filing in the appropriate offices of the financing statements described in Sections 4.02(b), 4.02(c), 4.02(d) and 4.02(e), the Administrative Agent, on behalf of the Purchasers, shall, for any reason, fail or cease to have a valid and perfected first priority ownership or security interest in the Receivables and Related Security, Collections and Proceeds with respect thereto, free and clear of any Adverse Claims (other than, in the case of the Transferor, Liens for taxes, assessments or other governmental charges that are not yet due and payable and, in the case of any Seller, Permitted Originator Encumbrances); or
(g) a Collection Agent Default shall have occurred; or
(h) the Transferor, TriMas Corp., or any Seller shall enter into any corporate transaction or merger that is not otherwise permitted by this Agreement or the Receivables Purchase Agreement; or
(i) there shall have occurred since the Closing Date any event or condition which could reasonably be expected to have a Material Adverse Effect; or
(j) (i) the Percentage Interest exceeds the Maximum Percentage Interest unless the Transferor reduces the Net Investment from previously received Collections or other funds available to the Transferor or increases the balance of the Receivables on the next Business Day following such breach so as to reduce the Percentage Interest to less than or equal to 100%; or (ii) the Net Investment shall exceed the Facility Limit; or
(k) the average Dilution Ratio for the three preceding Calculation Periods exceeds 9.0%; or
(l) the average Default Ratio for the three preceding Calculation Periods exceeds 3.0%; or
(m) the average Delinquency Ratio for the three preceding Calculation Periods exceeds 5.0%; or
(n) a Responsible Officer of the Transferor receives notice or becomes aware that a notice of lien has been filed against TriMas Corp., TriMas LLC, the Transferor or the Collection Agent under Section 412(n) of the Code or Section 302(f) of ERISA for a failure to make a required installment or other payment to a plan to which Section 412(n) of the Code or Section 302(f) of ERISA applies; or
(o) the Receivables Purchase Agreement is terminated; or
(p) TriMas Corp., TriMas LLC and the Sellers (in the aggregate) shall fail to maintain 100% ownership of the Transferor; or
(q) TriMas Corp., TriMas LLC or any of its Subsidiaries default in the observance or performance of Section 6.12 or 6.13 of the Credit Agreement (whether or not such agreement remains in effect).
SECTION 7.02. Remedies Upon the Occurrence of a Termination Event. (a) Upon the occurrence of any Termination Event, the Administrative Agent may, or at the direction of the Required Purchasers shall, by notice to the Transferor and the Collection Agent, declare the Termination Date to have occurred; provided, however, that in the case of any event described in Section 7.01(e) above, the Termination Date shall be deemed to have occurred automatically upon the occurrence of such event. At all times after the declaration or automatic occurrence of the Termination Date pursuant to this Section 7.02(a), the Applicable Margin shall increase by 200 basis points. If an event or condition shall have occurred which constitutes a Potential Termination Event, of which the Administrative Agent is aware, the Administrative Agent may advise the Transferor of the occurrence of such Potential Termination Event.
(b) In addition, if any Termination Event occurs hereunder, the Administrative Agent shall promptly notify the Transferor in writing whether it has declared the Termination Date to have occurred and whether it will be exercising the remedies specified in this Section 7.02. From and after the Termination Date, (i) the Administrative Agent, on behalf of the Purchasers, shall have all of the rights and remedies provided to a secured creditor or a purchaser of accounts under the Relevant UCC by applicable law in respect thereto and (ii) (A) the Facility Limit shall be reduced as of each calendar date thereafter equal to the Net Investment as of such date and (B) the Percentage Interest shall be increased to 100%.
ARTICLE VIII
The Administrative Agent
SECTION 8.01. Appointment. Each of the Purchasers hereby irrevocably designates and appoints the Administrative Agent as the agent of such Person under this Agreement and irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of this Agreement, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, (i) the Administrative Agent shall not have any duties or responsibilities except those expressly set forth herein, or any fiduciary relationship with any Purchaser, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or otherwise exist against the Administrative Agent; and (ii) in no event shall the Administrative Agent be liable under or in connection with this Agreement for indirect, special, or consequential losses or damages of any kind, including lost profits, even if advised of the possibility thereof and regardless of the form of action by which such losses or damages may be claimed. In performing its functions and duties hereunder, the Administrative Agent shall act solely as the agent of the Purchasers, and the Administrative Agent does not assume, nor shall be deemed to have assumed, any trust or fiduciary obligation or relationship with or for any such Person. Without limiting the foregoing, in accordance with customary practices in syndicate financings, the Administrative Agent will promptly forward to each Purchaser any written information
delivered by or on behalf of the Transferor, any Seller or TriMas Corp. or TriMas LLC to the Administrative Agent.
SECTION 8.02. Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement by or through agents or attorneys-in-fact and shall be entitled to advice of counsel (who may be counsel for the Transferor or the Collection Agent), independent public accountants and other experts selected by it concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys in-fact selected by it with reasonable care.
SECTION 8.03. Exculpatory Provisions. Neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be (i) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this Agreement (x) with the consent or at the request of the Purchasers or (y) in the absence of its own gross negligence or willful misconduct or (ii) responsible in any manner to any of the Purchasers for any recitals, statements, representations or warranties made by the Transferor, the Collection Agent, the Sellers or any officer thereof contained in this Agreement or any other Transaction Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Transaction Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, any other Transaction Document, the Receivables (or any Related Security, Collections and Proceeds with respect thereto) or any Transferred Interest or for any failure of any of the Transferor, the Collection Agent, the Sellers or the Obligors to perform its obligations hereunder or thereunder. The Administrative Agent shall not be under any obligation to any Purchaser to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Transaction Document or to inspect the properties, books or records of the Transferor, the Collection Agent or any Seller.
SECTION 8.04. Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, fax, e-mail, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Transferor or the Collection Agent), independent accountants and other experts selected by the Administrative Agent and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Transaction Document unless it shall first receive such advice or concurrence of the Purchasers as it deems appropriate or it shall first be indemnified to its satisfaction by the Purchasers against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Transaction Documents in accordance with a request of the Required Purchasers (unless, in the case of any action relating to the giving of consent hereunder, the giving of such consent requires the consent of all Purchasers), and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Purchasers.
SECTION 8.05. Notice of Collection Agent Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Collection Agent Default or any Termination Event unless the Administrative Agent has received notice from a Purchaser, the Transferor or the Collection Agent referring to this Agreement, describing such Collection Agent Default or Termination Event and stating that such notice is a notice of a Collection Agent Default or notice of a Termination Event, as the case may be. In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give notice thereof to the Purchasers, the Transferor and the Collection Agent. The Administrative Agent shall take such action with respect to such event as shall be reasonably directed by the Required Purchasers, provided that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such event as it shall deem advisable in the best interests of the Purchasers.
SECTION 8.06. Non-Reliance on the Administrative Agent and Other Purchasers. Each of the Purchasers expressly acknowledges that neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by the Administrative Agent hereinafter taken, including any review of the affairs of the Transferor, shall be deemed to constitute any representation or warranty by the Administrative Agent to any such Person. Each of the Purchasers represents to the Administrative Agent that it has, independently and without reliance upon the Administrative Agent or any other Purchaser and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Transferor, the Collection Agent and the Sellers and made its own decision to enter into this Agreement. Each of the Purchasers also represents that it will, independently and without reliance upon the Administrative Agent or any other Purchaser, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Transaction Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Transferor, the Collection Agent and the Sellers. Except for notices, reports and other documents expressly required to be furnished to the Purchasers by the Administrative Agent hereunder, the Administrative Agent shall have no duty or responsibility to provide any Purchaser with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of the Transferor, the Collection Agent or the Sellers which may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.
SECTION 8.07. Indemnification. Each of the Purchasers, severally and not jointly, agrees to indemnify the Administrative Agent in its capacity as such (to the extent not reimbursed by the Transferor, the Collection Agent and the Sellers and without limiting the obligation of the Transferor, the Collection Agent and the Sellers to do so) ratably in accordance with their respective Pro Rata Shares, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time be imposed on, incurred by or asserted against the Administrative Agent in any way relating to or arising out of this Agreement, any of the other
Transaction Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative Agent under or in connection with any of the foregoing; provided that no Purchaser shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the Administrative Agents gross negligence or willful misconduct. The agreements in this Section shall survive the payment of all amounts payable hereunder.
SECTION 8.08. The Administrative Agent in Its Individual Capacity. The Administrative Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Transferor, the Collection Agent or any of their Affiliates as though the Administrative Agent were not the Administrative Agent hereunder. With respect to any Transferred Interest held by the Administrative Agent, the Administrative Agent shall have the same rights and powers under this Agreement and the other Transaction Documents as any Purchaser and may exercise the same as though it were not the Administrative Agent, and the term Purchaser shall include the Administrative Agent in its individual capacity.
SECTION 8.09. Resignation of Administrative Agent; Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent at any time by giving thirty (30) days notice to the Purchasers, the Transferor and the Collection Agent. The Administrative Agent may be removed at any time by a resolution of the Required Purchasers, removing the Administrative Agent and appointing from among the Purchasers a successor administrative agent, which successor administrative agent shall be approved by the Transferor and the Collection Agent (which approval shall not be unreasonably withheld), delivered to the Administrative Agent and the Collection Agent. If Wachovia shall resign as Administrative Agent under this Agreement, then the Required Purchasers, shall promptly appoint a successor administrative agent from among the Purchasers, which successor administrative agent shall be approved by the Transferor and the Collection Agent (which approval shall not be unreasonably withheld). If no successor administrative agent is appointed prior to the effective date of the resignation of the Administrative Agent, the Administrative Agent may appoint, after consulting with the Purchasers, the Transferor and the Collection Agent, a successor agent from among the Purchasers. If no successor administrative agent has accepted appointment as Administrative Agent by the date which is thirty (30) days following a retiring Administrative agents notice of resignation, the retiring Administrative Agents resignation shall nevertheless thereupon become effective and the Collection Agent shall assume and perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Purchasers appoint a successor agent as provided for above. Effective upon the appointment of a successor administrative agent, such successor administrative agent shall succeed to the rights, powers and duties of the Administrative Agent, and the term Administrative Agent shall mean such successor administrative agent effective upon such appointment and approval, and the former Administrative Agents rights, powers and duties as Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement. After any retiring Administrative Agents resignation as Administrative Agent, the provisions of this Article VII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement.
ARTICLE IX
Limited Guaranty
SECTION 9.01. Guaranty of Obligations. The Guarantor unconditionally guarantees the full and prompt payment when due of all of the payment obligations and the timely performance of all of the performance obligations of the Sellers of every kind and nature now or hereafter existing, or due or to become due, under the Transaction Documents (collectively, the Obligations); provided that, such Obligations shall not include amounts not collected in respect of any Receivable as a result of the lack of creditworthiness of an Obligor, including, but not limited to, amounts required to be returned to an Obligor as a voidable preference. The Guarantor shall pay all reasonable costs and expenses including, without limitation, all court costs and reasonable attorneys fees and expenses paid or incurred by the Administrative Agent and the other Beneficiaries in connection with (a) the collection of all or any part of the Obligations from the Guarantor and (b) the prosecution or defense of any action by or against the Administrative Agent, the other Beneficiaries or the Transferor in connection with, or relating to, the Obligations, whether involving the Sellers, the Collection Agent, the Guarantor, the Transferor or any other party (including, but not limited to, a trustee in a bankruptcy or a debtor-in-possession).
SECTION 9.02. Validity of Obligations; Irrevocability. The Guarantor agrees that subject to the proviso set forth in Section 9.01 above its obligations under this Guaranty shall be unconditional, irrespective of (i) the validity, enforceability, discharge, disaffirmance, settlement or compromise (by any Person, including a trustee in a bankruptcy or a debtor-in-possession) of the Obligations or of the Transaction Documents or any Contract, (ii) the absence of any attempt to collect the Obligations from a Seller or the Collection Agent or any other party, (iii) the waiver or consent by any Person with respect to any provision of any instrument evidencing the Obligations, (iv) any change of the time, manner or place of payment or performance, or any other term of any of the Obligations, (v) any law, regulation or order of any jurisdiction affecting any term of any of the Obligations or rights of any Person with respect thereto, (vi) the failure by any Person to take any steps to perfect and maintain perfected its interest in the Receivables or any security or collateral related to the Obligations or (vii) any other circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantor or surety. The Guarantor agrees that the Administrative Agent and the Beneficiaries shall be under no obligation to marshal any assets in favor of or against or in payment of any or all of the Obligations. The Guarantor further agrees that, to the extent a payment is made by a Seller or the Collection Agent under the Transaction Documents, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to such Seller or the Collection Agent, its estate, trustee, receiver or any other party, under any bankruptcy, insolvency or similar state or federal law, common law or equitable cause, then to the extent of such payment or repayment, the Obligation or part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred. The Guarantor waives all set-offs, defenses and counterclaims and all presentments, demands for performance, notices of dishonor and notice of acceptance of this Guaranty. The Guarantors obligations under this Guaranty shall be irrevocable.
SECTION 9.03. Several Obligations. The obligations of the Guarantor hereunder are separate and apart from the Sellers or any other Person, and are primary obligations concerning which the Guarantor is the principal obligor. This Guaranty shall not be discharged except by payment in full of the Obligations and complete performance of the obligations of the Guarantor hereunder. The obligations of the Guarantor hereunder shall not be affected in any way by the release or discharge of a Seller from the performance of any of the Obligations (other than the full and final payment of all of the Obligations), whether occurring by reason of law or any other cause, whether similar or dissimilar to the foregoing.
SECTION 9.04. Subrogation Rights. If any amount shall be paid to the Guarantor on account of subrogation rights relating to the Obligations at any time when all the Obligations shall not have been paid in full, such amount shall be held in trust for the benefit of the Administrative Agent, on behalf of the Beneficiaries, and shall forthwith be paid to the Administrative Agent to be applied to the Obligations. If (a) the Guarantor shall make payment to the Administrative Agent of or perform all or any part of the Obligations and (b) all the Obligations shall be paid and performed in full, the Administrative Agent will, at the Guarantors request, execute and deliver to the Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor of any interest in the Obligations resulting from such payment or performance by the Guarantor. The Guarantor shall have no rights of subrogation with respect to amounts due to the Administrative Agent or the Beneficiaries until such time as all obligations of the Sellers to the Transferor, the Administrative Agent and the Beneficiaries have been paid or performed in full and this Agreement has been terminated.
SECTION 9.05. Rights of Set-Off. The Guarantor hereby authorizes the Administrative Agent, on behalf of the Beneficiaries, at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (whether general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by the Administrative Agent or the Beneficiaries to or for the credit or the account of the Guarantor against any and all of the obligations of the Guarantor now or hereafter existing under this Guaranty (even if contingent or unmatured). The Guarantor hereby acknowledges that rights of the Administrative Agent, on behalf of the Beneficiaries, described in this Section 9.05 are in addition to all other rights and remedies (including, without limitation, other rights of set-off) the Administrative Agent and the Beneficiaries may have.
SECTION 9.06. Representations and Warranties. The Guarantor hereby represents and warrants to the Administrative Agent, for the benefit of the Beneficiaries, as of the date hereof, as follows:
(a) Existence and Power. The Guarantor is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware and has all 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. The Guarantor 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) LLC and Governmental Authorization; Contravention. The execution, delivery and performance by the Guarantor of this Guaranty and the other Transaction Documents to which the Guarantor is a party are within the Guarantors limited liability company powers, have been duly authorized by all necessary limited liability company action, require no action by or in respect of, or filing with, any Official Body or official thereof, and do not contravene, or constitute a default under, any provision of applicable law, rule or regulation or of the Certificate of Formation of the Guarantor or of any material agreement, judgment, injunction, order, writ, decree or other instrument binding upon the Guarantor or result in the creation or imposition of any Adverse Claim on the assets of the Guarantor or any of its Subsidiaries (except as contemplated by Section 2.09).
(c) Binding Effect. Each of this Guaranty and the other Transaction Documents to which the Guarantor is a party constitutes the legal, valid and binding obligation of the Guarantor, 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).
(d) Accuracy of Information. All written information heretofore furnished by the Guarantor to the Administrative Agent or the Beneficiaries for purposes of or in connection with this Guaranty, the other Transaction Documents or any transaction contemplated hereby or thereby is, and all such written information hereafter furnished by the Guarantor to the Administrative Agent or the Beneficiaries will be, true and accurate in every material respect on the date such information is stated or certified.
(e) Tax Status. The Guarantor has filed all tax returns (Federal, state and local) required to be filed and has paid prior to delinquency 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).
(f) Action, Suits. Except as set forth in the TriMas Corp. Form 10-Q for the period ended September 30, 2009, there are no actions, suits or proceedings pending, or to the knowledge of the Guarantor threatened, against or affecting the Guarantor or any Affiliate of the Guarantor or their respective properties, in or before any court, arbitrator or other body, which may, individually or in the aggregate, have a Material Adverse Effect.
(g) Not an Investment Company. The Guarantor is not, nor is it controlled by, an investment company within the meaning of the Investment Company Act of 1940, as amended, or is exempt from all provisions of such Act.
ARTICLE X
Miscellaneous
SECTION 10.01. Term of Agreement. This Agreement shall terminate on the date following the Termination Date upon which the Net Investment has been reduced to zero, and all accrued Discount, Fees, Servicing Fees and all other Aggregate Unpaids have been paid in full,
in each case, in cash; provided, however, that the rights and remedies of the Administrative Agent and the Purchasers with respect to any representation and warranty made or deemed to be made by the Transferor or the Seller pursuant to this Agreement, and (ii) the indemnification and expense payment provisions of this Agreement, shall be continuing and shall survive any termination of this Agreement.
SECTION 10.02. Waivers; Amendments. No failure or delay on the part of the Administrative Agent or any Purchaser in exercising any power, right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or remedy preclude any other further exercise thereof or the exercise of any other power, right or remedy. The rights and remedies herein provided shall be cumulative and nonexclusive of any rights or remedies provided by law. Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by the parties hereto and the Required Purchasers; provided, however, that no such amendment or waiver shall, without the consent of each affected Purchaser, (A) extend the Termination Date or the date of any payment or deposit of Collections by the Transferor or the Collection Agent, (B) reduce the rate or extend the time of payment of any Discount, interest or fees hereunder or under any Fee Letter, (C) change the amount of any Purchasers Pro Rata Share or Commitment, (D) consent to or permit the assignment or transfer by the Transferor of any of its rights or obligations under this Agreement, (E) amend or modify the definitions of Percentage Interest or Required Purchasers or any other defined term used in such definitions, to the extent used in such definitions, (F) amend or modify this Section 10.02, (G) change the Net Investment held by any Purchaser, (H) at any time while there are two or fewer Purchasers, amend or waive any Collection Agent Default under Section 6.07(e), (I) amend or waive any Termination Event described in Sections 7.01(e), 7.01(f), 7.01(j), 7.01(k), 7.01(l), 7.01(m) or 7.01(p), (J) release or terminate any interest created hereunder in any Receivables or Related Security with respect thereto, or (K) amend or waive any provision of Section 2.12(a).
SECTION 10.03. Notices. Except as provided below, all communications and notices provided for hereunder shall be in writing (including telecopy, electronic mail, electronic facsimile transmission or similar writing) and shall be given to the other party at its address or telecopy number set forth below or at such other address or telecopy number as such party may hereafter specify for the purposes of notice to such party. Each such notice or other communication shall be effective (i) if given by telecopy, when such telecopy is transmitted to the telecopy number specified in this Section 10.03 and confirmation is received, (ii) if given by mail three (3) Business Days following such posting, postage prepaid, U.S. certified or registered, (iii) if given by overnight courier, one (1) Business Day after deposit thereof with a national overnight courier service, or (iv) if given by any other means, when received at the address specified in this Section 10.03. However, anything in this Section 10.03 to the contrary notwithstanding, the Transferor hereby authorizes the Administrative Agent and each Purchaser to effect Transfers, and, as applicable, Tranche Period selections based on telephonic notices made by any Person which the Administrative Agent or such Purchaser in good faith believes to be acting on behalf of the Transferor. The Transferor agrees to deliver promptly to the Administrative Agent and each Purchaser a written confirmation of each telephonic notice signed by an authorized officer of Transferor. However, the absence of such confirmation shall not affect the validity of such notice. If the written confirmation differs in any material respect from
the action taken by the Administrative Agent or such Purchaser, the records of the Administrative Agent or such Purchaser shall govern absent manifest error.
If to a Purchaser, to its address set forth on Schedule B (with a copy to the Administrative Agent).
If to the Transferor:
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TSPC, Inc. |
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2520 Saint Rose Parkway, Suite 212 |
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Henderson, NV 89074-7787 |
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Attention: Michael DeWinter |
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Telephone: (702) 836-3510 |
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Telecopy: (702) 925-3905 |
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with a copies to: |
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Comptroller and General Counsel |
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39400 Woodward Avenue Suite 130 |
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Bloomfield Hills, MI 48304 |
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Telephone: (248) 631-5400 Telecopy: (248) 631-5413 |
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and |
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Douglas Horowitz |
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Cahill Gordon & Reindel LLP |
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80 Pine Street |
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New York, NY 10005 |
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Telecopy: (212) 269-5420 |
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If to the Sellers, as provided in Section 9.03 of the Receivables Purchase Agreement. |
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If to the Administrative Agent: |
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Wachovia Bank, National Association 6 Concourse Parkway, Suite 1450 |
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Atlanta, GA 30328 |
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Attention: |
Eero Maki |
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Telephone: |
(404) 732-0821 |
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Telecopy: |
(404) 732-0801 |
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E-mail: |
Eero.Maki@wachovia.com |
If to the Purchasers, at their respective addresses set forth on Schedule B.
SECTION 10.04. Governing Law; Submission to Jurisdiction; Integration. (a) This Agreement shall be governed by, and construed in accordance with the laws of the State of New York. Each of the parties hereto hereby submits 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 of the parties 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 10.04 shall affect the right of any party hereto to bring any action or proceeding against any party hereto or its respective properties in the courts of other jurisdictions.
(b) Each of the parties hereto hereby waives any right to have a jury participate in resolving any dispute, whether sounding in contract, tort or otherwise among any of them arising out of, connected with, relating to or incidental to the relationship between them in connection with this Agreement or the other Transaction Documents.
(c) This Agreement contains the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire Agreement among the parties hereto with respect to the subject matter hereof superseding all prior oral or written understandings.
SECTION 10.05. Severability; Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement. Any provisions of this Agreement which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 10.06. Successors and Assigns. (a) This Agreement shall be binding on the parties hereto and their respective successors and assigns; provided, however, that (i) the Transferor may not assign any of its rights or delegate any of its duties hereunder or under any of the other Transaction Documents to which it is a party without the prior written consent of the Administrative Agent and the Purchasers, (ii) neither the Guarantor nor any Seller may assign any of its rights or delegate any of its duties hereunder or under any of the other Transaction Documents to which it is a party without the prior written consent of the Administrative Agent and the Required Purchasers, and (iii) without the prior written consent of the Administrative Agent and the Required Purchasers, the Collection Agent may not assign any of its rights or delegate any of its duties hereunder or under any of the other Transaction Documents to which it is a party except as permitted in Section 10.06(b). No provision of this Agreement shall in any manner restrict the ability of any Purchaser to assign, participate, grant security interests in, or otherwise transfer any portion of the Transferred Interest as provided in this Section 10.06.
(b) Assignments and Delegation by Collection Agent. So long as TriMas Corp. or any of its Affiliates is acting as the Collection Agent, the Collection Agent may delegate certain of its duties and responsibilities as Collection Agent hereunder to the Sellers in accordance with the Receivables Purchase Agreement, so long as the Collection Agent remains primarily liable to the Administrative Agent and the Purchasers for the full and prompt performance of all duties and responsibilities of the Collection Agent hereunder. Notwithstanding any such delegation by the Collection Agent, the Administrative Agent and the Purchasers shall be entitled to deal exclusively with the Collection Agent in matters relating to the discharge by the Collection Agent of its duties and responsibilities hereunder, and the Administrative Agent and the Purchasers shall not be required to give notice, demand or other communication to any Person other than the Collection Agent in order for communication to the Collection Agent and the Sellers as its subservicers or delegates in respect thereof to be accomplished. In addition to the foregoing, in order to facilitate the collection of certain Defaulted Receivables and Fully-Diluted Receivables, the Collection Agent may delegate certain of its duties and responsibilities as Collection Agent hereunder in respect of such Receivables to outside collection agencies in accordance with past practices, and provided that no Termination Event or Potential Termination Event exists and is continuing, the Transferor may assign such Defaulted Receivables and Fully-Diluted Receivables to such collection agencies for collection, free and clear of any ownership interest or security interest of the Administrative Agent and the Purchasers.
(c) Participations. Any Purchaser may, with the consent of the Administrative Agent and in the ordinary course of its business and its accordance with applicable law, at any time sell to one or more Persons (each, a Participant) participating interest in its rights and obligations hereunder and under the Transaction Documents; provided, however, that each Participant shall purchase an identical percentage in such selling Purchasers Commitment, and Pro Rata Share of the Funded Amount. Notwithstanding any such sale by a Purchaser of a participating interest to a Participant, such Purchasers rights and obligations under this Agreement shall remain unchanged, such Purchaser shall remain solely responsible for the performance hereof, and the Administrative Agent shall continue to deal solely and directly with such Purchaser in connection with such Purchasers rights and obligations under this Agreement and the other Transaction Documents. Each Purchaser agrees that any agreement between such Purchaser and any such Participant in respect of such participating interest shall not restrict such Purchasers right to agree to any amendment, supplement, waiver or modification to this Agreement.
(d) Assignments.
(i) Any Purchaser may at any time and from time to time, upon the prior written consent of the Administrative Agent, and, if the Assignee is not an Affiliate of the selling Purchaser, the prior written consent of the Transferor (which consent shall not be unreasonably withheld), assign to one or more accredited investors or other Persons (Assignee(s)) all or any part of its rights and obligations under this Agreement and the other Transaction Documents pursuant to a supplement to this Agreement, substantially in the form of Exhibit K hereto (each, a Transfer Supplement), executed by the Assignee, such selling Purchaser, the Administrative Agent and, if applicable, the Transferor; and provided, however, that (A) each Assignee shall purchase an identical percentage in such selling Purchasers Commitment and Pro Rata Share of its Funded Amount, (B) any such assignment cannot be for an amount less than the lesser of (1)
$5,000,000 and (2) such selling Purchasers Commitment or Pro Rata Share of the Funded Amount (calculated at the time of such assignment) and (C) each Assignee must be a qualified institutional buyer (as defined in Rule 144A under the Securities Act of 1933, as amended).
(ii) [intentionally deleted].
(iii) Upon (A) execution of a Transfer Supplement, (B) delivery of an executed copy thereof to the Administrative Agent, and (C) payment, if applicable, by the Assignee to such selling Purchaser of an amount equal to the purchase price agreed between such selling Purchaser and the Assignee, such selling Purchaser shall be released from its obligations hereunder to the extent of such assignment and the Assignee(s) shall, for all purposes, be a Purchaser party to this Agreement and shall have all the rights and obligations of a Purchaser under this Agreement to the same extent as if it were an original party hereto, and no further consent or action by the Purchasers or the Administrative Agent shall be required. The amount of the assigned portion of the selling Purchasers Pro Rata Share of the Funded Amount allocable to the Assignee shall be equal to the Transferred Percentage (as defined in the Transfer Supplement) of such selling Purchasers Pro Rata Share of the Funded Amount which is transferred thereunder regardless of the purchase price paid therefor. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the Assignee as a Purchaser and the resulting adjustment of the selling Purchasers Commitment arising from the purchase by the Assignee of all or a portion of the selling Purchasers rights, obligations and interest hereunder.
(iv) Notwithstanding any other provision of this Agreement to the contrary, any Purchaser may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, any Transferred Interest and any rights to payment of Net Investment, Discount and any other amounts) under this Agreement to secure obligations of such Purchaser to a Federal Reserve Bank, and this Section shall not apply to any such pledge or grant of a security interest; provided that no such pledge or grant of a security interest shall release a Purchaser from any of its obligations hereunder, or substitute any such pledgee or grantee for such Purchaser as a party hereto.
SECTION 10.07. Confidentiality. (a) Each of the Transferor, the Collection Agent and the Guarantor shall maintain, and shall cause each officer, employee and agent of itself and its Affiliates to maintain, the confidentiality of the Transaction Documents and all other confidential proprietary information with respect to the Purchasers and the Administrative Agent and each of their respective businesses obtained by them in connection with the structuring, negotiation and execution of the transactions contemplated herein and in the other Transaction Documents, except for information that has become publicly available or information disclosed (i) to legal counsel, accountants and other professional advisors to the Transferor, the Collection Agent, the Guarantor and their respective Affiliates, (ii) as required by law, regulation or legal process (including in connection with any registration Statement or other filing made with the Commission) or in connection with any legal or regulatory proceeding to which the Transferor, the Collection Agent, the Guarantor or any of their respective Affiliates is subject. Each of the Transferor, the Collection Agent and the Guarantor hereby consents to the disclosure of any
nonpublic information with respect to it received by any Purchaser or the Administrative Agent to any other Purchaser, any potential Purchaser, any Participant or any potential Participant.
(b) Each of the Purchasers and the Administrative Agent shall maintain, and shall cause each officer, employee and agent of itself and its Affiliates to maintain, the confidentiality of the Transaction Documents and all other confidential proprietary information with respect to the Transferor, the Sellers, the Guarantor and their Affiliates and each of their respective businesses obtained by them in connection with the structuring, negotiation and execution of the transactions contemplated herein and in the other Transaction Documents, except for information that has become publicly available except that such information may be disclosed (i) to legal counsel, accountants and other professional advisors to the Purchasers, the Administrative Agent and their respective Affiliates, (ii) as required by law, regulation or legal process or (iii) pursuant to the order of any court or administrative agency or in any pending legal or administrative proceeding, (iv) to any other Person specified in the last sentence of Section 10.07(a), or (v) upon the request of demand of any regulatory authority having jurisdiction over the Administrative Agent or any Purchaser.
SECTION 10.08. Characterization of the Transactions Contemplated by the Agreement. (a) It is the intention of the parties that the transactions contemplated hereby constitute (other than for tax purposes) the sale of the Transferred Interest, conveying good title thereto free and clear of any Adverse Claims to the Purchasers, and that the Transferred Interest not be part of the Transferors estate in the event of an insolvency. If, notwithstanding the foregoing, the transactions contemplated hereby should be deemed a financing, the parties intend that the Transferor shall be deemed to have granted to the Administrative Agent, on behalf of the Purchasers, and the Transferor hereby grants to the Administrative Agent, on behalf of the Purchasers, a first priority perfected and continuing security interest in all of the Transferors right, title and interest in, to and under the Receivables outstanding on the Initial Incremental Transfer Date and thereafter owned by the Transferor, together with the Related Security and Collections with respect thereto and all Proceeds of the foregoing, whether now owned or hereafter acquired and wherever located, the Lock-Box Accounts, and all of the Transferors rights under the Receivables Purchase Agreement with respect to the Receivables and with respect to any obligations thereunder of the Seller with respect to the Receivables, and that this Agreement shall constitute a security agreement under applicable law. If, notwithstanding the intention of the parties expressed above, any sale or transfer by the Transferor hereunder shall be characterized as a secured loan and not a sale or such sale shall for any reason be ineffective or unenforceable, the Transferor represents and warrants that each remittance of Collections to the Administrative Agent or the Purchasers hereunder will have been (i) in payment of a debt incurred in the ordinary course of business or financial affairs and (ii) made in the ordinary course of business or financial affairs. The Transferor hereby assigns to the Administrative Agent, on behalf of the Purchasers, all of its rights and remedies under the Receivables Purchase Agreement with respect to the Receivables and with respect to any obligations thereunder of the Seller with respect to the Receivables. The Transferor shall not give any consent or waiver required or permitted to be given under the Receivables Purchase Agreement without the prior consent of the Administrative Agent and the Required Purchasers, such consent not to be unreasonably withheld.
(b) It is the intention of the parties that the transactions contemplated by the Receivables Transfer Agreement will create a debt obligation of the Transferor for United States Federal, state and local income and franchise tax purposes. Unless otherwise required by law, the parties agree to treat the transactions accordingly for all such purposes.
SECTION 10.09. Limitation on the Termination of Sellers. Notwithstanding anything to the contrary contained in the Receivables Purchase Agreement, the Transferor shall not consent to any request made pursuant to Section 8.03 thereof, nor shall any Seller or Seller Division which is the subject of such request be terminated under the Receivables Purchase Agreement, in each case unless (i) no Termination Event or Potential Termination Event (other than with respect to the Seller or Seller Division to be so terminated) has occurred and is continuing (both before and after giving effect to such termination) and (ii) the Administrative Agent shall have received prior notice of such termination.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Receivables Transfer Agreement as of the date first written above.
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TSPC, INC., as Transferor |
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By: |
/s/ ROBERT J. ZALUPSKI |
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Name: Rober J. Zalupski |
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Title: Vice President & Treasurer |
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TRIMAS CORPORATION, individually, as Collection Agent |
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By: |
/s/ A. MARK ZEFFIRO |
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Name: A. Mark Zeffiro |
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Title: Chief Financial Officer |
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TRIMAS COMPANY, LLC, individually, as Guarantor |
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By: |
/s/ JOSHUA A. SHERBIN |
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Name: Joshua A. Sherbin |
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Title: Vice President & Secretary |
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WACHOVIA BANK, NATIONAL ASSOCIATION, individually and as Administrative Agent |
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By: |
/s/ EERO H. MAKI |
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Name: Eero H. Maki |
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Title: Director |
SCHEDULE A
DEFINITIONS
ABR Tranche shall mean a Tranche as to which Discount is calculated at the sum of the Alternate Base Rate plus the Applicable Margin.
ABR Tranche Period shall mean a calendar month or any portion thereof.
Administrative Agent shall mean Wachovia, as administrative agent on behalf of the Purchasers, and any successor appointed pursuant to Section 8.09 of the Receivables Transfer Agreement.
Administrative Agents Account shall mean account no. 2070482789126, account name: Leverage Finance NC, at Wachovia Bank, National Association, ABA No. 053000219, Reference: TSPC, Inc., or any other account or accounts as the Administrative Agent may indicate from time to time.
Adjusted Dilution Ratio means, at any time, the rolling average of the Dilution Ratio for the 12 Calculation Periods then most recently ended.
Advance shall have the meaning specified in Section 3.02(b) of the Receivables Purchase Agreement.
Adverse Claim shall mean a lien, security interest, charge or encumbrance, or other right or claim in, of or on any Persons assets or properties in favor of any other Person (including any UCC financing statement or any similar instrument properly filed against such Persons assets or properties).
Affiliate shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of voting stock, by contract or otherwise.
Aggregate Commitment shall mean, at any time, the sum of the Commitments then in effect.
Aggregate Unpaids shall mean, at any time, an amount equal to the sum of (i) the aggregate accrued and unpaid Discount at such time, (ii) the Net Investment at such time, (iii) all Fees, (iv) all Indemnified Amounts, amounts payable pursuant to Section 2.21 and Indemnified Taxes and (v) all other amounts owed (whether due or accrued) by the Transferor to the Purchasers at such time.
Alternate Base Rate or ABR shall mean, for any date of determination a rate per annum equal to the greater of (i) the prime rate of interest announced by the Administrative Agent from time to time, changing when and as said prime rate changes (such rate not
necessarily being the lowest or best rate charged by the Administrative Agent) or (ii) the sum of (a) 0.50% and (b) the Federal Funds Rate for such date.
Applicable Margin shall have the meaning specified in the Fee Letter.
Approved Foreign Country shall mean Canada or the United Kingdom.
Availability shall mean the excess (if any) of (a) the lesser of (i) the Facility Limit and (ii) the Net Receivables Balance, over (b) the sum of (i) the Net Investment plus (ii) the Required Reserves.
Bankruptcy Code shall have the meaning assigned to that term in Section 3.01(v) of the Receivables Transfer Agreement.
Beneficiaries shall mean the Purchasers and the Administrative Agent, collectively.
Benefit Plan shall mean any employee benefit plan as defined in Section 3(3) of ERISA in respect of which the Transferor, any Seller or any ERISA Affiliate of the Transferor, or any Seller is, or at any time during the immediately preceding six (6) years was, an employer as defined in Section 3(5) of ERISA.
Business Day shall mean any day excluding Saturday, Sunday and any day on which commercial banks in The City of New York are authorized or required by law to close, and, when used with respect to the determination of the LMIR or any notice with respect thereto, any such day which is also a day for trading by and between banks in the London interbank market in United States dollar deposits.
Calculation Period shall mean each Fiscal Month.
Capitalized Lease of a Person shall mean any lease of property by such Person as lessee which would be capitalized on a balance sheet of such Person prepared in accordance with GAAP consistently applied.
Carrying Cost Reserve Ratio shall mean, for any Calculation Period, the product (expressed as a percentage) of (i) 1.5 times (ii) the Alternate Base Rate as of the immediately preceding Cut-Off Date times (iii) a fraction the numerator of which is the highest Days Sales Outstanding for the most recent 12 Calculation Periods and the denominator of which is 360.
Change of Control shall mean the occurrence of a Change in Control (as defined in the Credit Agreement as in effect on the Closing Date or as such definition may thereafter be amended with the consent of the Administrative Agent hereunder).
Charged-Off Receivables shall mean, with respect to any Calculation Period, all Receivables (or portions thereof) which, in accordance with the Credit and Collection Policy, have or should have been written off during such Calculation Period as uncollectible, including, without limitation, the Receivables of any Obligor which becomes the subject of any voluntary or involuntary bankruptcy proceeding.
Closing Date shall mean December 29, 2009.
Code shall mean the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder.
Collection Agent shall mean, at any time, the Person then authorized pursuant to Section 6.01 of the Receivables Transfer Agreement to act as Collection Agent. The initial Collection Agent shall be TriMas Corp.
Collection Agent Default shall have the meaning specified in Section 6.07 of the Receivables Transfer Agreement.
Collection Notice shall mean a written notice by the Administrative Agent to a Lock-Box Bank pursuant to a Lock-Box Agreement to cease honoring funds transfer and withdrawal instructions from the Transferor. The Administrative Agent may deliver a Collection Notice only if deemed necessary or advisable in its reasonable judgment.
Collections shall mean, with respect to any Receivable, all cash collections and other cash proceeds of such Receivable, including, without limitation, all Finance Charges, if any, and cash proceeds of Related Security with respect to such Receivable and any Deemed Collections.
Commission shall mean the Securities and Exchange Commission.
Commitment shall mean, with respect to any Purchaser, the amount specified as such on Schedule B to the Receivables Transfer Agreement for such Purchaser, as the same may be reduced or increased from time to time as provided in Section 2.07 of the Receivables Transfer Agreement.
Commitment Expiry Date shall mean the earliest to occur of (i) the date on which all amounts due and owing to the Purchasers under the Transaction Documents have been paid in full and the Aggregate Commitment has been reduced to zero pursuant to the Receivables Transfer Agreement, (ii) the Termination Date, and (iii) December 29, 2012.
Concentration Floor Percentage shall mean (a) 12% at any time while the Stress Factor is 1.50, and 20% at all other times.
Concentration Limit shall mean, on any day:
(a) in relation to all Eligible Foreign Receivables, 15% of total Eligible Receivables; and
(b) in relation to the aggregate Outstanding Balance of Receivables owed by any single Obligor and its Affiliates (if any), the applicable concentration limit for Obligors who have short term unsecured debt ratings currently assigned to them by S&P and Moodys (or in the absence thereof, the equivalent long term unsecured senior debt ratings), the applicable Concentration Limit shall be determined according to the following table:
S&P Short-Term |
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Moodys Short- |
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S&P Long-Term |
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Moodys Long- |
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Allowable % of |
A-1+ |
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P-1 |
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AA- or better |
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A2 or better |
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12% |
A-1 |
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P-1 |
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A |
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A-2 or better |
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10% |
A-2 |
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P-2 |
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BBB+ |
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Baa1 |
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8% |
A-3 |
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P-3 |
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BBB- |
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Baa3 |
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6% |
Below A-3 or Not Rated by either S&P or Moodys |
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Below P-3 or Not Rated by either S&P or Moodys |
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Below BBB- or Not Rated by either S&P or Moodys |
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Below Baa3 or Not Rated by either S&P or Moodys |
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4% |
; provided, however, that (i) if any obligor has a split rating, the applicable rating will be the lower of the two, and (ii) if any obligor is not rated by either S&P or Moodys, the applicable Obligor Concentration Limit shall be the one set forth in the last line of the table above.
Contract shall mean a written agreement or invoice, pursuant to or under which an Obligor shall be obligated to pay for merchandise purchased or services rendered and including all items and provisions incorporated or implied by applicable law, including, without limitation, the Relevant UCC.
Credit Agreement shall mean that certain Amended and Restated Credit Agreement, dated as of December 16, 2009, by and among TriMas Corp., TriMas LLC, JPMorgan Chase Bank, N.A., as administrative agent, J.P. Morgan Securities Inc., as arranger and the various lending institutions party thereto, as amended, supplemented or otherwise modified or replaced or refinanced and in effect from time to time.
Credit and Collection Policy shall mean the Sellers credit and collection policy or policies relating to Contracts and Receivables existing on the Closing Date and referred to in Exhibit A attached to the Receivables Transfer Agreement, as amended, supplemented or otherwise Modified and in effect from time to time in compliance with Section 5.02(c) of the Receivables Transfer Agreement.
Cut-Off Date shall mean the last day of each Calculation Period.
Days Sales Outstanding and DSO shall mean, on any Cut-Off Date, the number of calendar days equal to the product of (a) 91 and (b) the amount obtained by dividing (i) the aggregate Outstanding Balance of all Receivables as of such Cut-Off Date by (ii) the aggregate balance of Receivables which arose during the three (3) consecutive Calculation Periods immediately preceding such Cut-Off Date, which calculation shall remain in effect until the next succeeding Cut-Off Date for all purposes of the Receivables Transfer Agreement.
Deemed Collections shall mean any Collections on any Receivable deemed to have been received pursuant to Section 2.10(a) or (b) of the Receivables Transfer Agreement.
Default Horizon Ratio means, as of any Cut-Off Date, the ratio (expressed as a decimal) computed by dividing (i) the aggregate sales generated by the Sellers during the last
three months (or such other period as the Administrative Agent may determine based on a Review) ending on such Cut-Off Date, by (ii) the Net Receivables Balance as of such Cut-off Date.
Default Ratio means, as of any Cut-Off Date, the ratio (expressed as a percentage) computed by dividing (a) the total amount of Receivables, which became Defaulted Receivables during the month that includes such Cut-Off Date, by (b) the aggregate sales generated by the Originators during the month occurring four months prior to the month ending on such Cut-Off Date.
Defaulted Receivable shall mean a Receivable (which on the date of its origination was an Eligible Receivable): (i) as to which any payment, or part unpaid for more than 90 days from the original due date for such Receivable; (ii) as to which an Event of Bankruptcy has occurred and is continuing with respect to the Obligor thereof; (iii) which has been identified by the Transferor, the Seller or the Collection Agent as uncollectible; or (iv) which, in accordance with the Credit and Collection Policy, should be written off as uncollectible.
Delinquency Ratio means, at any time, a percentage equal to (a) the aggregate outstanding principal balance of all Receivables that were Delinquent Receivables at such time divided by (b) the Outstanding Balance of all Receivables at such time.
Delinquent Receivable shall mean a Receivable (which on the date of its origination was an Eligible Receivable) as to which any payment, or part thereof, remains unpaid for more than 60 days past its original due date but does not constitute a Defaulted Receivable.
Designated Obligor shall mean, at any time, each Obligor; provided, however, that any Obligor shall cease to be a Designated Obligor upon notice to the Transferor from the Administrative Agent, delivered at any time.
Diluted Receivable shall mean, any Receivable (which on the date of its origination was an Eligible Receivable) which is the subject of a reduction or cancellation as a result of any Dilution.
Dilution means the amount of any reduction or cancellation of the Outstanding Balance of a Receivable, including, without limitation, adjustments to the Outstanding Balance of a Receivable, due to (i) any defective, rejected or returned merchandise or services, (ii) any cash discount or any other credits, discounts, disputes, warranty claims, repossessed or returned goods, charge backs, allowances, other dilutive factors and any other billing or other adjustment (whether effected through the granting of credits against the applicable Receivables or by the issuance of a check or other payment in respect of (and as payment for) such reduction by any Seller or any Affiliate thereof, or as a result of any governmental or regulatory action, (iii) any setoff in respect of any claim by the Obligor thereof (whether such claim arises out of the same or a related or an unrelated transaction), (iii) any rebate or refund, (iv) any misstatement of the amount thereof, or (v) any misrepresentation, but excluding adjustments, reductions, or cancellations in respect of the Obligors payment of the Receivable or bankruptcy or insolvency, but excluding any reduction or cancellation resulting from payment by an Obligor or a Receivable becoming a Delinquent Receivable or a Defaulted Receivable.
Dilution Horizon Ratio means, as of any Cut-off Date, a ratio (expressed as a decimal), computed by dividing (a) the aggregate sales generated by the Sellers during the three consecutive Calculation Periods (or such other period as the Administrative Agent may determine based on a Review) ending on such Cut-Off Date, by (b) the Net Receivables Balance as of such Cut-Off Date.
Dilution Ratio means, as of any Cut-Off Date, subject to the Special Adjustment after the Inclusion Date (if any), a ratio (expressed as a percentage), computed by dividing (a) the total amount of decreases in outstanding principal balances due to Dilution during the Calculation Period ending on such Cut-Off Date, by (b) the aggregate sales generated by the Sellers during the Calculation Period ending three months prior to the Calculation Period ending on such Cut-Off Date.
Dilution Reserve Ratio means, for any month, the product (expressed as a percentage) of: (a) the sum of (i) the Stress Factor times the Adjusted Dilution Ratio as of the immediately preceding Cut-Off Date, plus (ii) the Dilution Volatility Component as of the immediately preceding Cut-Off Date, times (b) the Dilution Horizon Ratio as of the immediately preceding Cut-Off Date.
Dilution Volatility Component means the product (expressed as a percentage) of (i) the difference between (a) the highest three (3)-month rolling average Dilution Ratio over the past 12 months and (b) the Adjusted Dilution Ratio, and (ii) a fraction, the numerator of which is equal to the amount calculated in (i)(a) of this definition and the denominator of which is equal to the amount calculated in (i)(b) of this definition.
Discount shall mean, with respect to any Tranche Period:
(TR x TNI x AD)
YD
Where: |
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TR |
= |
the Tranche Rate applicable to such Tranche Period; |
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TNI |
= |
the portion of the Net Investment allocated to such Tranche Period; |
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AD |
= |
the actual number of days during such Tranche Period; and |
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YD |
= |
either (i) if the Tranche Rate is based on the LMIR, 360 or (ii) if the Tranche Rate is based on the Alternate Base Rate, 365 or 366, as applicable, |
provided, however, that no provision of the Receivables Transfer Agreement shall require the payment or permit the collection of Discount in excess of the maximum amount permitted by applicable law; and provided further, that Discount shall not be considered paid by any distribution if, at any time, such distribution is rescinded or must be returned for any reason.
Discount Percentage shall mean, on any date, the percentage obtained from the following formula:
100% - (A + B + C + D)
all determined by the Transferor as of the related Transfer Date,
Where |
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A |
= |
Adjusted Loss Reserve Percentage, which as of such Transfer Date will equal the ratio obtained by dividing (a) Charged-Off Receivables (net of recoveries in respect of Charged-Off Receivables) during the six-Fiscal Month period immediately preceding the Cut-Off Date most recently preceding such Transfer Payment Date by (b) the aggregate amount of Collections during the six-Fiscal Month period immediately preceding the Cut-Off Date most recent to such Transfer Date. |
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B |
= |
Adjusted Carrying Cost Reserve Percentage, which as of such Transfer Date will equal the amount obtained by dividing (a) the product of (i) the Stress Factor. (ii) the average of the DSO for the three Cut-Off Dates most recent to such Transfer Date and (iii) the Alternate Base Rate as of the Cut-Off Date most recent to such Transfer Date by (b) 365. |
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C |
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The product of (i) the Servicing Fee Percentage and (ii) 1/3. |
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D |
= |
Processing Expense Reserve Percentage; which will equal 1/10 of 1% and reflects the cost of the Transferors overhead, including costs of processing the purchase of Receivables and other normal operation costs and a reasonable profit margin. |
None of the elements of the above-referenced formula, in respect of any purchase of Receivables, will be adjusted following the related Transfer Date.
With respect to each calculation set forth above with respect to a Cut-Off Date, such calculation as calculated on such Cut-Off Date and included in the applicable Monthly Report shall remain in effect from and including the related Cut-Off Date to but excluding the following Cut-Off Date.
For the initial Calculation Period, the Discount Percentage will be 98.6%.
Notwithstanding the foregoing, the Discount Percentage shall never be less than 97.5%.
Eligible Foreign Receivable shall mean an Eligible Receivable as to which the Obligor is a resident of an Approved Foreign Country.
Eligible Obligor shall mean any Obligor, of which not more than 35% of such Obligors aggregate Receivables are more than 120 days past their original due date.
Eligible Receivable shall mean, at any time, any Receivable:
(1) which has been originated by any Seller and subsequently sold to the Transferor pursuant to (and in accordance with) the Receivables Purchase Agreement, and to which the Transferor has good title thereto, free and clear of all Adverse Claims other than those imposed in connection with, or permitted by, the Transaction Documents and Liens for taxes, assessments or other governmental charges payable by the Transferor that are not yet due and payable;
(2) which (together with the Collections and Related Security related thereto) has been the subject of either (A) a valid transfer and assignment from the Transferor to the Administrative Agent, on behalf of the Purchasers, of all of the Transferors right, title and interest therein or (B) the grant of a first priority perfected security interest therein (and in the Collections and Related Security related thereto) in favor of the Administrative Agent, on behalf of the Purchasers, in each case effective until termination of the Receivables Transfer Agreement.
(3) the Obligor of which is (A) a resident of the United States, a U.S. territory or an Approved Foreign Country, (B) a Designated Obligor at the time of the initial creation of an interest therein under the Receivables Transfer Agreement, (C) not an Official Body or an Affiliate of any of the parties to the Receivables Transfer Agreement, (D) not the subject of an Event of Bankruptcy, and (E) an Eligible Obligor;
(4) which is not a Delinquent Receivable or a Defaulted Receivable;
(5) which (A) arises pursuant to a Contract with respect to which the Seller has performed all obligations required to be performed by it thereunder, including, without limitation, shipment of the merchandise and/or the performance of the services purchased thereunder; and (B) according to the Contract related thereto, has been billed and is required to be paid in full within 60 days (or, in the case of the Specified Obligor, if applicable, 75 days) of the original billing date therefor in accordance with the terms of the applicable Contract;
(6) as to which the Obligor is not required to pay cash on delivery or cash in advance;
(7) which is (A) an account within the meaning of Section 9-102(a)(2) of the Relevant UCC, or (B) a payment intangible within the meaning of Section 9-102(a)(61) of such Relevant UCC;
(8) which is denominated and payable only in United States dollars in the United States;
(9) which arises under a Contract that, together with the Receivable related thereto, is in full force and effect and constitutes the legal, valid and binding obligation of the related Obligor, enforceable against such Obligor in accordance with its terms and is not subject to any litigation, dispute, offset, counterclaim or other defense other than unexpired volume or pricing discounts or
rebates to which the obligor thereon may be entitled, provided that only such portion of such receivable subject to any such dispute, offset, counterclaim or defense shall be deemed ineligible under this criterion;
(10) which, together with the Contract related thereto, does not contravene in any material respect any laws, rules or regulations applicable thereto (including, without limitation, laws, rules and regulations relating to truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy) and with respect to which no part of the Contract related thereto is in violation of any such law, rule or regulation in any material respect;
(11) which (A) satisfies in all material respects all applicable requirements of the Credit and Collection Policy, (B) is assignable without the consent of, or notice to, the Obligor thereunder, and (C) complies at the time of the initial creation of an interest therein under the Receivables Transfer Agreement with such other reasonable criteria and requirements as the Administrative Agent and the Required Purchasers have then specified to the Transferor following five (5) days notice;
(12) which was originated in the ordinary course of the applicable Sellers business or acquired from an originator approved by the Administrative Agent and the Required Purchasers which approval shall not be unreasonably withheld;
(13) the Obligor of which has been directed to make all payments to a specified account of the Transferor with respect to which there shall be a Lock-Box Agreement in effect;
(14) the assignment of which under the Receivables Purchase Agreement by the Seller to the Transferor and the assignment of which under the Receivables Transfer Agreement by the Transferor to the Purchasers does not violate, conflict with or contravene any applicable laws, rules, regulations, orders or writs or any contractual or other restriction, limitation or encumbrance and does not require the consent of any Person;
(15) which has not been compromised, adjusted or modified (including by the extension of time for payment or the granting of any discounts, allowances or credits), provided that only such portion of such receivable that has been so compromised, adjusted or modified shall be deemed ineligible pursuant to this criterion; and
(16) which does not arise under a Contract that has been rewritten.
ERISA shall mean the Employee Retirement Income Security Act of 1974, as amended, supplemented or otherwise modified and in effect from time to time, and the rules and regulations promulgated thereunder.
ERISA Affiliate shall mean, with respect to any Person, (i) any corporation which is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code as such Person; (ii) a trade or business (whether or not incorporated) under common control (within the meaning of Section 414(c) of the Code) with such Person; or (iii) a member of the same affiliated service group (within the meaning of Section 414(m) of the Code) as such Person, any corporation described in clause (i) above or any trade or business described in clause (ii) above.
Event of Bankruptcy shall mean, with respect to any Person, (i) that such Person (a) shall generally not pay its debts as such debts become due or (b) shall admit in writing its inability to pay its debts generally or (c) shall make a general assignment for the benefit of creditors; (ii) any proceeding shall be instituted by or against such Person seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property, and, if instituted against such Person, shall remain undischarged for a period of 60 days; or (iii) if such Person is not an individual, such Person or any Subsidiary shall take any corporate or similar action to authorize any of the actions set forth in the preceding clauses (i) or (ii).
Excluded Receivable shall mean, at any time prior to satisfaction of the Inclusion Conditions with respect to a Special Obligor, all indebtedness owed to any Seller by such Special Obligor under a Contract and rights of payment and other payment obligations (whether or not earned by performance), whether constituting an account, chattel paper, instrument, investment property or general intangible, arising in connection with property or goods that have been or are to be sold, leased or otherwise disposed of, or services rendered or to be rendered, by such Seller, in each case, in its ordinary course of business and the right to payment of any Finance Charges and other obligations of such Special Obligor with respect thereto,
Facility Limit shall mean, at any time, an amount equal to the Aggregate Commitment at any time in effect; provided, further, that from and after the Termination Date, the Facility Limit shall at all times equal the Net Investment.
Facility Limit Increment Amount shall mean $50,000,000.
Federal Funds Rate shall mean, for any day, an interest rate per annum equal to (a) the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day; as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or (b) if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 11:00 A.M. (New York time) on such day on such transactions received by the Administrative Agent from three (3) federal funds brokers of recognized standing selected by the Administrative Agent in its sole discretion.
Fee Letter shall mean the letter agreement, dated the Closing Date, between the Transferor and the Administrative Agent, for the benefit and on behalf of the Purchasers, with
respect to the fees to be paid by the Transferor under the Transaction Documents, as amended, supplemented or otherwise modified and in effect from time to time.
Fees shall mean the fees payable pursuant to the Fee Letter.
Finance Charges shall mean, with respect to a Contract, any finance, interest, late or similar charges owing by an Obligor pursuant to such Contract.
Fiscal Month shall mean a fiscal month of TriMas Corp.
Fiscal Year shall mean a fiscal year of TriMas Corp.
Fully-Diluted Receivable shall have the meaning specified in Section 2.11(b) of the Receivables Transfer Agreement.
Funded Amount shall mean, with respect to any Purchaser for any day, the portion of the Net Investment funded by such Purchaser for such day.
GAAP shall mean generally accepted accounting principles in the United States of America, subject to Section 1.02 of the Receivables Transfer Agreement.
Guarantor shall mean TriMas LLC in its capacity as Guarantor under the Limited Guaranty set forth in Article IX of the Receivables Transfer Agreement.
Guaranty shall mean, with respect to any Person, any agreement by which such person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the payment of or otherwise becomes liable upon, the obligation of any other Person, or agrees to maintain the net worth or working capital or other financial condition of any other Person or otherwise assures any other creditor of such other Person against loss, including, without limitation, any comfort letter, operating agreement or take-or-pay contract and shall include, without limitation, the contingent liability of such Person in connection with any application for a letter of credit; provided, however, that the term Guaranty shall not mean or include the endorsements by such Person of instruments for deposit or collection in the ordinary course of business.
Inclusion Conditions shall mean, as to Excluded Receivables owing from any Special Obligor, the following:
(a) TriMas Corp. shall have given the Transferor and the Administrative Agent not less than 45 days prior written notice of its desire to include as Receivables amounts owing from such Special Obligor as of the first day of a specified future Calculation Period;
(b) The Collection Agent shall have delivered to the Administrative Agent restated Monthly Reports for not less than the 12 Calculation Periods preceding the proposed date of inclusion, recomputing the ratios and amounts set forth therein as if such Excluded Receivables had been included in Receivables for the periods covered thereby, and none of such restated Monthly Reports indicates that a Termination Event under Section 7.01(k), (l) or (m) would have occurred had they been so included;
(c) The Administrative Agent shall have received updated UCC searches against each of the relevant Sellers in its jurisdiction of organization revealing no financing statements of record covering such Excluded Receivables, and each of the financing statements filed against any Seller or the Transferor shall have been amended to include such Excluded Receivables in the collateral covered thereby;
(d) The Collection Agent and the Sellers shall have instructed the applicable Special Obligor to make all payments in respect of such Excluded Receivables directly to a Lock-Box Bank Account maintained pursuant to a Lock-Box Agreement, duly executed by all parties thereto; and
(e) If reasonably deemed necessary by the Administrative Agent, a Review shall have been conducted within the 3 months prior to the proposed date of inclusion.
Inclusion Date means the date, if any, when obligations of any Special Obligor that were formerly Excluded Receivables are included in Receivables following satisfaction of the Inclusion Conditions.
Incremental Transfer shall mean a Transfer which is made pursuant to Section 2.02(a) of the Receivables Transfer Agreement.
Indebtedness shall mean, with respect to any Person, such Persons (i) obligations for borrowed money, (ii) obligations representing the deferred purchase price of property other than accounts payable arising in the ordinary course of such Persons business on terms customary in the trade, (iii) obligations, whether or not assumed, secured by liens or payable out of the proceeds or production from property now or hereafter owned or acquired by such Person, (iv) obligations which are evidenced by notes, acceptances, or other instruments, (v) Capitalized Lease obligations and (vi) Guaranty obligations.
Indemnified Amounts shall have the meaning specified in Section 2.20 of the Receivables Transfer Agreement.
Indemnified Parties shall have the meaning specified in Section 2.20 of the Receivables Transfer Agreement.
Indemnified Taxes shall mean any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Official Body, excluding (A) all franchise taxes, all taxes, levies, imposts, duties, charges, fees, deductions and withholdings imposed on or measured by the net income, capital or net worth or all taxes, levies, imposts, duties, charges, fees, deductions and withholdings on doing business, in each case, imposed:
(i) by the United States or any political subdivision or taxing authority thereof or therein;
(ii) by any jurisdiction under the laws of which the Administrative Agent, any Purchaser or any Indemnified Party or lending office is organized or in which its lending office is located, managed or controlled or in which its principal
office is located or any political subdivision or taxing authority thereof or therein; or
(iii) by reason of any connection between the jurisdiction imposing such tax and the Administrative Agent, any Purchaser, such Indemnified Party or such lending office other than a connection arising-solely from the Receivables Transfer Agreement or any other Transaction Document or any transaction hereunder or thereunder,
(B) all penalties, interests, additions to taxes and expenses resulting from gross negligence or willful misconduct on the part of the Administrative Agent, any Purchaser or any Indemnified Party, as the case may be, and (C) all taxes, levies, imposts, duties, charges, fees, deductions and withholdings imposed by reason of the failure of any Indemnified Party to comply with its obligations, if any, under Section 2.22(b) of the Receivables Transfer Agreement (including, without limitation, its inability to comply with Section 2.22(b)(i) of the Receivables Transfer Agreement.
Indenture shall mean that certain Indenture governing the 9-3/4% senior secured notes due 2017 among TriMas Corp. the various guarantors party thereto and The Bank of New York Mellon Trust Company, as Trustee.
Initial Incremental Transfer Date shall mean the date of the initial Incremental Transfer.
Interim Report shall mean a report, in substantially the form attached to the Receivables Transfer Agreement as Exhibit D or in such other form as is mutually agreed to by the Transferor and the Administrative Agent, delivered by the Collection Agent to the Administrative Agent on each Interim Reporting Date occurring while any Net Investment is outstanding or in any week in which a Transfer is to occur.
Interim Reporting Date shall mean (a) the third Business Day of each calendar week, and (b) at any time requested by the Administrative Agent, each Business Day.
Interim Settlement Date shall mean (a) the Business Day immediately succeeding each Interim Reporting Date on which the applicable Interim Report reveals that the Percentage Interest exceeds the Maximum Percentage Interest, or (b) any Interim Reporting Date on which the applicable Interim Report reveals that the Net Investment exceeds the Facility Limit.
Law shall mean any law (including common law), constitution, statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or award of any Official Body.
Leverage Ratio shall have the meaning specified in the Credit Agreement as in effect on the Closing Date or as such definition (or any of its components) may thereafter be amended with the consent of the Administrative Agent hereunder. For purposes of computing the Stress Factor, the Leverage Ratio for any Calculation Period (or portion thereof) shall be the Leverage Ratio in effect as of the last day of the most recently completed fiscal quarter for which financial statements are required to have been delivered by TriMas Corp. to the Administrative Agent under the Receivables Transfer Agreement (it being understood that any change in the Leverage
Ratio shall become effective immediately on the date on which such financial statements are required to have been delivered).
LIBOR Market Index Rate shall mean, for any day, the three-month Eurodollar Rate for U.S. dollar deposits as reported on the Reuters Screen LIBOR01 Page.
Limited Guaranty shall mean the Guaranty of the Guarantor under Article IX of the Receivables Transfer Agreement.
LMIR shall mean, on any date of determination, a rate per annum equal to the LIBOR Market Index Rate, plus the Applicable Margin.
LMIR Tranche shall mean a Tranche as to which Discount is calculated at the LMIR plus the Applicable Margin.
LMIR Tranche Period shall mean, with respect to an LMIR Tranche, a calendar month or any portion thereof.
Lock-Box Account shall mean an account maintained by the Transferor or an account holder identified in any Lock-Box Agreement at a Lock-Box Bank for the purpose of receiving Collections from Receivables.
Lock-Box Agreement shall mean an agreement between the Collection Agent, the Transferor, any applicable account holder identified therein, the Administrative Agent and a Lock-Box Bank in a form reasonably acceptable to the Administrative Agent.
Lock-Box Bank shall mean each of the banks set forth in Exhibit B to the Receivables Transfer Agreement, and such banks as may be added thereto or deleted therefrom pursuant to Section 2.09 of the Receivables Transfer Agreement.
Loss Reserve Ratio shall mean, on any day, the product of (a) the Stress Factor, and (b) the highest three-month average Default Ratio that occurred during the twelve (12) most recent Calculation Periods, and (c) the Default Horizon Ratio.
Material Adverse Effect shall mean any event or condition which would have a material adverse effect on (i) the collectability of the Receivables, (ii) the condition (financial or otherwise), businesses or properties of the Transferor, the Guarantor or any Seller, (iii) the ability of the Transferor, the Guarantor or any Seller to perform its respective obligations under the Transaction Documents, to which it is a party or (iv) the interests of the Administrative Agent or the Purchasers under the Transaction Documents; provided, however, that for purposes of clauses (ii) and (iii) an event or condition will not be deemed to have a Material Adverse Effect unless such event or condition, in the reasonable discretion of the Administrative Agent and the Required Purchasers, is reasonably likely to have a material adverse effect on the condition (financial or otherwise) of TriMas Corp. on a consolidated basis or on the Transferor.
Maximum Percentage Interest shall mean 100%.
Monthly Payment Date shall mean the fifth day of each calendar month after the date of the Receivables Transfer Agreement (commencing January 5, 2010) or, if such day is not a Business Day, the next succeeding Business Day.
Monthly Report shall have the meaning specified in Section 2.12(b) of the Receivables Transfer Agreement.
Monthly Reporting Date shall mean the 20th of each calendar month after the date of the Receivables Transfer Agreement or, if such 20th day is not a Business Day, the next succeeding Business Day.
Moodys shall mean Moodys Investors Service, Inc., and its successors and assigns.
Multiemployer Plan shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA which is or was at any time during the current year or the immediately preceding five years contributed to by the Transferor, the Seller or any ERISA Affiliate of the Transferor or the Seller on behalf of its employees.
Net Investment shall mean the sum of the cash amounts paid to the Transferor by the Purchasers for all Incremental Transfers minus the aggregate amount of Collections received and applied by the Administrative Agent to reduce such Net Investment pursuant to Section 2.05, 2.06 or 2.10 of the Receivables Transfer Agreement; provided that the Net Investment shall be restored and reinstated in the amount of any Collections so received and applied if, at any time, the distribution of such Collections is rescinded or must otherwise be returned for any reason.
Net Receivables Balance shall mean, at any time, the aggregate Outstanding Balance of the Eligible Receivables at such time, as reduced by (without duplication) the aggregate amount for all Designated Obligors by which the Outstanding Balance of all Eligible Receivables of each Designated Obligor exceeds the product of the Concentration Limit for such Designated Obligor multiplied by the Outstanding Balance of all Eligible Receivables of such Designated Obligor.
Obligor shall mean a Person obligated to make payments for the provision of goods and services pursuant to a Contract.
OFAC shall mean The U.S. Department of the Treasurys Office of Foreign Assets Control.
Official Body shall mean any government or political subdivision or any agency, authority, bureau, central bank, commission, department or instrumentality of any such government or political subdivision, or any court, tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
Outstanding Balance shall mean, with respect to any Receivable at any time, the then outstanding principal amount thereof, excluding any accrued and outstanding Finance Charges related thereto.
Parent Compliance Certificate shall mean each certificate delivered pursuant to Section 5.01(c) of the Credit Agreement.
Participant shall have the meaning given to such term in Section 10.06(c) of the Receivables Transfer Agreement.
Percentage Interest shall mean, an undivided percentage interest (computed as set forth below) associated with a designated Funded Amount, selected pursuant to the terms and conditions hereof in (i) each Receivable arising prior to the time of the most recent computation or recomputation of such undivided interest, (ii) all Related Security with respect to each such Receivable, and (iii) all Collections with respect to, and other proceeds of, each such Receivable. Each such undivided percentage interest shall equal (a) prior to the Termination Date:
FA + RR |
NRB |
where:
FA = the Funded Amount of such Transferred Interest
NRB = the Net Receivables Balance
RR = the Required Reserve
and (b) upon the occurrence of and after the Termination Date, 100%.
The Percentage Interest shall be calculated by the Collection Agent on the day of the initial Incremental Transfer under the Receivables Transfer Agreement. Thereafter, until the Termination Date, the Collection Agent shall recompute the Percentage Interest at the time of each Incremental Purchase pursuant to Section 2.02(a) of the Receivables Transfer Agreement and as of the close of business on each Business Day and report such recomputation to the Administrative Agent in the Settlement Statements and as otherwise requested by any Purchaser. The Percentage Interest shall remain constant from the time as of which any such computation or recomputations is made until the time as of which the next such recomputations shall be made, notwithstanding any additional Receivables arising, any Incremental Transfer made pursuant to such Section 2.02(a) or any reinvestment Transfer made pursuant to Section 2.02(b) and 2.05 of the Receivables Transfer Agreement during any period between computations of the Percentage Interest. The Percentage Interest shall remain constant at 100% at all times on and after the Termination Date until such time as the Administrative Agent, on behalf of the Purchasers, shall have received payment in full in cash of the Aggregate Unpaids at which time the Percentage Interest shall equal zero.
Permitted Originator Encumbrances shall mean (a) Liens for taxes, assessments or other governmental charges not yet due and payable or that are being contested in accordance with the terms and conditions of Section 4.02(q) of the Purchase Agreement (but only to the extent that any Lien imposed to secure payment of such taxes or assessments or other governmental charges is an inchoate tax lien), (b) pledges or deposits securing obligations under workmens compensation, unemployment insurance, social security or public liability laws or similar legislation (excluding Liens under ERISA), (c) pledges or deposits securing bids, tenders, contracts (other than contracts for the payment of money) or leases to which any Seller is a party as lessee made in the ordinary course of business, (d) deposits securing statutory obligations of any Seller, (e) inchoate and unperfected workers, mechanics suppliers or similar Liens arising in the ordinary course of business, (f) carriers, warehousemens or other similar possessory Liens arising in the ordinary course of business, (g) deposits securing, or in lie of, surety, appeal
or customs bonds in proceedings to which any Seller is a party, (h) any attachment or judgment Lien not constituting a Termination Event under Section 9.01(f) of the Receivables Transfer Agreement and (i) Liens in favor of lenders under the Credit Agreement and Liens in favor of holders of notes issued under the Indenture.
Person shall mean any corporation, limited liability company, natural person, firm, joint venture, partnership, trust, unincorporated organization, enterprise, government or any department or agency of any government.
Potential Termination Event shall mean an event which but for the lapse of time or the giving of notice, or both, would constitute a Termination Event.
Proceeds shall mean proceeds as defined in Section 9-102(a)(64) of the Relevant UCC.
Pro Rata Share shall mean, on any date of determination, with respect to any Purchaser, the ratio (expressed as a percentage) of such Purchasers Commitment to the Aggregate Commitment at such time.
Purchase Price, as used in any Receivables Purchase Agreement, shall have, the meaning set forth in Section 3.01 of the Receivables Purchase Agreement.
Purchase Termination Date shall have the meaning specified in Section 8.01 of the Receivables Purchase Agreement.
Purchased Receivables Percentage means, with respect to any Seller (or Seller Division) as to which TriMas Corp. has submitted a Seller Termination Request, the percentage equivalent of a fraction, the numerator of which is an amount equal to the aggregate Outstanding Balance of Receivables sold by such Seller (or Seller Division) as of the applicable Seller Termination Request Date, and the denominator of which is an amount equal to the aggregate Outstanding Balance of all Receivables as of such date.
Purchaser shall mean each of the banks and other financial institutions identified on Schedule B to the Receivables Transfer Agreement, as the same may be amended, supplemented or otherwise modified and in effect from time to time.
Receivable shall mean the United States dollar-denominated indebtedness owed to the applicable Seller by an Obligor under a Contract and rights of payment and other payment obligations (whether or not earned by performance), whether constituting an account, chattel paper, instrument, investment property or general intangible, arising in connection with property or goods that have been or are to be sold, leased or otherwise disposed of, or services rendered or to be rendered, by such Seller, in each case, in its ordinary course of business and includes the right to payment of any Finance Charges and other obligations of such Obligor with respect thereto; provided, however, in no event shall any Excluded Receivable constitute a Receivable. Notwithstanding the foregoing, once a Receivable has been deemed collected pursuant to Section 2.10 of the Receivables Transfer Agreement, it shall no longer constitute a Receivable for purposes of computing any ratio under the Receivables Transfer Agreement.
Receivables Purchase Agreement shall mean the Amended and Restated Receivables Purchase Agreement. dated as of December 29, 2009, by and among TriMas Corporation, the Sellers, as sellers, and the Transferor, as purchaser, as such agreement may be amended, supplemented or otherwise modified and in effect from time to time.
Receivables Transfer Agreement shall mean the Receivables Transfer Agreement, dated as of December 29, 2009, by and between the Transferor, TriMas Corp., individually, as Collection Agent and TriMas LLC, individually, as Guarantor, the Purchasers and the Administrative Agent, as such agreement may be amended, supplemented or otherwise modified and in effect from time to time.
Recipient shall have the meaning specified in Section 2.15 of the Receivables Transfer Agreement.
Records shall mean all Contracts and other documents, books, records and other writings and information (including, without limitation, computer programs, tapes, discs, punch cards, data processing software and related property and rights) maintained with respect to Receivables and the related Obligors.
Reduction Notice shall mean an irrevocable notice of a reduction in the Net Investment pursuant to Section 2.06(d) of the Receivables Transfer Agreement, executed by the Transferor, substantially in the form of Exhibit G to the Receivables Transfer Agreement.
Related Security shall mean, with respect to any Receivable, all of the applicable Sellers or Transferors right, title and interest in, to and under:
(a) the merchandise (including returned or repossessed merchandise), if any, the sale of which by such Seller gave rise to such Receivable;
(b) all other security interests or liens and property subject thereto from time to time, if any, purporting to secure payment of such Receivable, whether pursuant to the Contract related to such Receivable or otherwise, together with all financing statements naming the applicable Obligor as debtor describing any collateral securing such Receivable;
(c) all guarantees, indemnities, warranties, insurance (and proceeds thereof) or other agreements or arrangements of any kind from time to time supporting or securing payment of such Receivable whether pursuant to the Contract related to such Receivable or otherwise;
(d) all Records related to such Receivable;
(e) in the case of the Administrative Agent for the benefit of the Purchasers, all rights and remedies of the Transferor under the Receivables Purchase Agreement, together with all financing statements naming any Seller as debtor or seller and the Transferor as secured party or buyer filed in connection therewith; and
(f) all Proceeds of any of the foregoing.
Relevant UCC shall mean, with respect to any state, the Uniform Commercial Code as from time to time in effect in such state.
Required Purchasers shall mean Purchasers having Pro Rata Shares in the aggregate equal to more than 50% or, if the Commitments have been terminated, having more than 50% of the Net Investment; provided that the Commitment of any Defaulting Purchaser that has not paid all amounts due and owing by it in respect of Purchases, it was obliged to make shall not be included in the Commitments for purposes of this definition.
Required Reserve means, on any day during a Calculation Period, the product of (a) the greater of (i) the Required Reserve Factor Floor and (ii) the sum of the Loss Reserve Ratio, the Carrying Cost Reserve Ratio, the Dilution Reserve Ratio and the Servicing Fee Reserve Ratio, times (b) the Net Receivables Balance as of the Cut-Off Date immediately preceding such Calculation Period.
Required Reserve Factor Floor shall mean, for any Calculation Period, the greater of (a) 25%, and (b) the sum (expressed as a percentage) of (i) the Concentration Floor Percentage, plus (ii) the product of the Adjusted Dilution Ratio and the Dilution Horizon Ratio, in each case, as of the immediately preceding Cut-Off Date plus (iii) Carrying Cost Reserve Ratio and Servicing Fee Reserve Ratio.
Responsible Officer shall mean with respect to any Seller or the Transferor, any officer directly or indirectly responsible for the execution of the transactions contemplated by the Transaction Documents.
Review shall have the meaning specified in Section 5.01(d) of the Receivables Transfer Agreement.
Sanctioned Country shall mean a country subject to a sanctions program identified on the list maintained by OFAC and available at: http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html, or as otherwise published from time to time.
Sanctioned Person shall mean (i) a person named on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC available at: http://www.treas.gov/offices/eotffc/ofac/sdn/index.html, or as otherwise published from time to time or (ii) (A) an agency of the government of a Sanctioned Country, (B) an organization controlled by a Sanctioned Country, or (C) a person resident in a Sanctioned Country, to the extent subject to a sanctions program administered by OFAC.
Seller Addition Date shall have the meaning specified in Section 7.02 of the Receivables Purchase Agreement.
Seller Division shall mean any business unit or operating assets acquired by a Seller which is made part of an existing division of a Seller or made a new division (but not a subsidiary) of a Seller.
Seller Termination Request shall have the meaning specified in Section 8.03(b) of the Receivables Purchase Agreement.
Seller Termination Request Date shall have the meaning specified in Section 8.03(b) of the Receivables Purchase Agreement.
Sellers shall have the meaning specified in the recitals to the Receivables Purchase Agreement.
Servicing Fee shall mean the fees payable by the Transferor to the Collection Agent in an amount equal to the Servicing Fee Percentage multiplied by the amount of the aggregate Outstanding Balance of the Receivables or such other amount as may be determined pursuant to Section 6.02(b) of the Receivables Transfer Agreement. Such fee shall accrue from the date of the initial purchase of an interest by a Purchaser in the Receivables to the later of the Termination Date or the date on which the Percentage Interest is reduced to zero. On or prior to the Termination Date, and provided that no Potential Termination Event shall have occurred and be continuing, such fee shall be payable only from Collections pursuant to, and subject to the priority of payments set forth in, Section 2.05 of the Receivables Transfer Agreement. After the Termination Date or during the continuation of a Potential Termination Event, such fee shall be payable only from Collections pursuant to, and subject to the priority of payments set forth in, Section 2.06 of the Receivables Transfer Agreement.
Servicing Fee Percentage shall mean 0.50% per annum or, at any time when TriMas Corp. or any of its Affiliates is not the Collection Agent and a higher market rate is then prevailing, such higher market-rate percentage as may be agreed to by the Administrative Agent and the Collection Agent from time to time.
Servicing Fee Reserve Ratio shall mean, at any time, an amount equal to the product of (i) the Servicing Fee Percentage and (ii) a fraction having as the numerator, the highest DSO for the most recent 12 Calculation Periods, and as the denominator, 360.
Settlement Statement shall mean a Monthly Report or an Interim Report, as the case may be.
Solvent shall mean, with respect to any Person, that the fair value of the assets of such Person (both at fair valuation and at present fair saleable value) is, on the date of determination, greater than the total amount of liabilities (including contingent and unliquidated liabilities) of such Person as of such date and that, as of such date, such Person is able to pay all liabilities of such Person as such liabilities mature and such Person does not have unreasonably small capital with which to carry on its business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
Special Adjustment shall have the meaning specified in the Fee Letter.
Special Obligor shall have the meaning specified in the Fee Letter.
Specified Bankruptcy Opinion Provisions shall mean the factual assumptions (including those contained in the factual certificate referred to therein) and the actions to be taken by the Sellers or the Transferor, in each case as specified in the legal opinion of Cahill Gordon & Reindel LLP relating to certain bankruptcy matters delivered on the Closing Date.
Specified Level shall mean, as of the last day of any fiscal quarter ending during any period set forth below, the ratio set forth opposite such period:
Period |
|
Ratio |
|
October 1, 2009 to March 31, 2010 |
|
4.50 to 1.00 |
|
April 1, 2010 to June 30, 2010 |
|
4.75 to 1.00 |
|
July 1, 2010 to December 31, 2010 |
|
4.50 to 1.00 |
|
January 1, 2011 to June 30, 2011 |
|
4.25 to 1.00 |
|
July 1, 2011 to September 30, 2011 |
|
4.00 to 1.00 |
|
October 1, 2011 to September 30, 2012 |
|
3.75 to 100 |
|
thereafter |
|
3.50 to 1.00 |
|
Specified Obligor shall have the meaning specified in the Fee Letter.
Standard & Poors or S&P shall mean Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors and assigns.
Stress Factor shall mean (a) for any Calculation Period for which the Leverage Ratio is less than the Specified Level, 1.50, and (b) at the option of the Administrative Agent, for each Calculation Period for which the Leverage Ratio is greater than or equal to the Specified Level, the Stress Factor may be changed to 2.25; provided, however, that (i) if a Parent Compliance Certificate is not delivered when due in accordance with Section 5.01(a)(xi), the Stress Factor will be deemed to be 2.25 until the first day of the Calculation Period following delivery of a Parent Compliance Certificate revealing a Leverage Ratio of less than the applicable Specified Level; (ii) if any Parent Compliance Certificate delivered proves to understate the Leverage Ratio, then the Stress Factor will be retroactively adjusted to the proper level and if such adjustment results in the Percentage Interest exceeding the Maximum Percentage Interest, the Transferor will immediately pay an amount to the Administrative Agents Account for application to the Net Investment sufficient to eliminate such excess; and (iii) if any Parent Compliance Certificate delivered proves to overstate the Leverage Ratio, the Stress Factor shall be prospectively adjusted as of the first day of the Calculation Period in which a corrected certificate is delivered.
Subordinated Note shall have the meaning specified in Section 3.02(b) of the Receivables Purchase Agreement.
Subsidiary of a Person shall mean any Person more than 50% of the outstanding voting interests of which shall at any time be owned or controlled, directly or indirectly, by such Person
or by one or more Subsidiaries of such Person or any similar business organization which is so owned or controlled.
Termination Date shall mean with respect to each Purchaser the earliest of (i) the Business Day designated by the Transferor to the Purchasers as the Termination Date at any time following thirty (30) Business Days written notice to the Purchasers, (ii) the day upon which a Termination Date is declared or automatically occurs relating to a Termination Event pursuant to Section 7.02(a) of the Receivables Transfer Agreement, (iii) the Commitment Expiry Date, and (iv) the Purchase Termination Date with respect to all of the Sellers under the Receivables Purchase Agreement.
Termination Event shall mean an event described in Section 7.01 of the Receivables Transfer Agreement
Tranche shall mean each Purchasers Funded Amount.
Tranche Period shall mean an ABR Tranche Period or an LMIR Tranche Period, as applicable.
Tranche Rate shall mean (a) at any time while the LMIR is available, the sum of the LMIR plus the Applicable Margin, and (b) at all other times, the sum of the Alternate Base Rate plus the Applicable Margin.
Transaction Documents shall mean, collectively, the Receivables Transfer Agreement, the Receivables Purchase Agreement, the Fee Letter, the Lock-Box Agreements, the Subordinated Note and all of the other instruments, documents, certificates and other agreements executed and delivered by the Sellers or the Transferor in connection with any of the foregoing, in each case, as the same may be amended, restated, supplemented or otherwise modified from time to time.
Transfer shall mean a conveyance, transfer and assignment by the Transferor to the Purchasers of an undivided percentage ownership interest in Receivables and Related Security pursuant to, and in accordance with the Receivables Transfer Agreement (including, without limitation, as a result of any reinvestment Collections in Transferred Interests pursuant to Section 2.02(b) and 2.05 of the Receivables Transfer Agreement).
Transfer Date shall mean, with respect to each Transfer, the Business Day on which such Transfer is made.
Transfer Price shall mean, with respect to any incremental Transfer, the amount paid to the Transferor by the Purchasers. The Transfer Price for any Incremental Transfer shall be equal to the aggregate Net Investment (including such Incremental Transfer) minus the aggregate portion of the Net Investment paid in connection with all prior Transfers.
Transferor shall mean TSPC, Inc., a Nevada corporation, and its successors and permitted assigns.
Transferred Interest shall mean, on any date of determination, an undivided percentage ownership interest of the Purchasers in (i) each and every then outstanding Receivable, (ii) all Related Security with respect to each such Receivable, (iii) all Collections with respect thereto, and (iv) other Proceeds of the foregoing, which undivided ownership interest shall be equal to the Percentage Interest at such time, and only at such time (without regard to prior calculations). The Transferred Interest in each Receivable, together with Related Security, Collections and Proceeds with respect thereto, shall at all times be equal to the Transferred Interest in each other Receivable, together with Related Security, Collections and Proceeds with respect thereto. To the extent that the Transferred Interest shall decrease as a result of a recalculation of the Percentage Interest, the Purchasers shall be considered to have reconveyed to the Transferor an undivided percentage ownership interest in each Receivable, together with Related Security, Collections and Proceeds with respect thereto, in an amount equal to such decrease such that, in each case, the Transferred Interest in each Receivable shall be equal to the Transferred Interest in each other Receivable.
Transfer Notice shall have the meaning specified in Section 2.02(a) of the Receivables Transfer Agreement.
Transfer Supplement shall have the meaning specified in Section 10.06(d)(i) of the Receivables Transfer Agreement.
TriMas Corp. shall mean the TriMas Corporation, a Delaware corporation, and its successors and assigns.
TriMas LLC shall mean the TriMas Company LLC, a Delaware limited liability company, and its successors and assigns.
U.S. or United States shall mean the United States of America and its territories.
Wachovia shall mean Wachovia Bank, National Association, a national banking association, in its individual capacity, and its successors.
SCHEDULE B
PURCHASERS AND THEIR COMMITMENTS
Purchaser(s) |
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Commitment(s) |
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|
|
|
|
|
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Wachovia
Bank, National Association, and its successors |
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$ |
75,000,000 |
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Exhibit 99.1
FOR IMMEDIATE RELEASE |
CONTACT: |
Sherry Lauderback |
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Vice President, Investor Relations & Communications |
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(248) 631-5506 |
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sherrylauderback@trimascorp.com |
TRIMAS CORPORATION COMPLETES REFINANCING ACTIVITIES
Bank and Bond Debt Refinancing Extends Company Debt Maturity Profile
BLOOMFIELD HILLS, Michigan, January 14, 2010 TriMas Corporation (NASDAQ: TRS) today announced it has concluded the final step of its previously announced refinancing activities with the completion of the cash tender offer for its outstanding 9 7/8% Senior Subordinated Notes due 2012 (the Notes).
The refinancing activities for TriMas included:
· The amendment of its Credit Agreement to extend the maturity of $226.3 million of $252.2 million in term loans from August 2013 to December 2015, which is expected to improve the Companys financial flexibility. The maturity date and interest margins of approximately $26 million in term loans held by lenders that did not consent will remain unchanged;
· Extending the maturities of $75 million in revolving credit commitments from August 2011 to December 2013. The maturities and interest margin of $8 million in revolving credit commitments remains unchanged;
· The issuance of $250 million principal amount of 9 3/4% Senior Secured Notes due 2017, the proceeds of which, together with other available cash, were used to redeem $256 million principal amount of outstanding Notes;
· A new three-year accounts receivable facility which provides committed funding of up to $75 million and is expected to provide up to $25 million in increased availability at a lower cost of funds than the 364-day accounts receivable facility that it replaces; and
· The tender offer for and redemption of Notes as detailed below.
The refinancing activities of the past month improve and extend TriMas debt maturity profile, as well as provide additional financial flexibility that allows us to continue to execute on our business plan, commented David Wathen, TriMas President and Chief Executive Officer. We will remain focused on improving our operating performance via productivity initiatives and increased cash generation, allowing us to continue our progress in reducing debt and strengthening the balance sheet. We appreciate the cooperation we have received from our lenders and other stakeholders.
The tender offer for the outstanding Notes, which commenced on December 14, 2009, expired at 11:59 p.m., New York City time, on January 12, 2010 (the Expiration Time). As previously announced, at the termination of the consent solicitation, which occurred at 5:00 p.m., New York City time, on December 28, 2009 (the Consent Date), TriMas had received tenders and certain-related
consents from holders of $245,626,000 in aggregate principal amount of the Notes, representing approximately 95.75% of the outstanding Notes. On December 29, 2009, TriMas accepted for payment, and paid for, all Notes tendered prior to the Consent Date.
According to the Bank of New York Mellon Trust Company, N.A., the depositary for the tender offer, a total of $68,000 in aggregate principal amount of the Notes were validly tendered after the Consent Date and on or prior to the Expiration Time. TriMas has accepted for payment, and has paid for, all such Notes validly tendered after the Consent Date but on or prior to the Expiration Time. Approximately 95.77% of the aggregate principal amount of the Notes was validly tendered during the tender offer period. Any Notes not tendered were irrevocably called for redemption on December 29, 2009 with cash deposited with the Trustee to fund such call. As a result, no Notes remain outstanding.
Credit Suisse Securities (USA) LLC acted as the dealer manager in connection with the tender offer and solicitation agent in connection with the consent solicitation. Questions regarding the tender offer or consent solicitation may be directed to Credit Suisse Securities (USA) LLC at (212) 538-1862 (collect) or (800) 820-1653 (toll free). MacKenzie Partners, Inc. acted as the Information Agent for the tender offer and consent solicitation.
This announcement shall not constitute an offer to purchase or a solicitation of an offer to sell any securities. The tender offer and consent solicitation were made only through and subject to the terms and conditions set forth in the tender offer documents and related materials.
Cautionary Notice Regarding Forward-looking Statements
Any forward-looking statements contained herein, including those relating to market conditions or TriMas financial condition and results, expense reductions, liquidity expectations, business goals and sales growth, involve risks and uncertainties, including, but not limited to, risks and uncertainties with respect to general economic and currency conditions, various conditions specific to the Issuers business and industry, the Companys substantial leverage, liabilities imposed by the Companys debt instruments, market demand, competitive factors, the Companys ability to maintain compliance with the listing requirements of NASDAQ, supply constraints, material and energy costs, technology factors, litigation, government and regulatory actions, the Companys accounting policies, future trends, and other risks which are detailed in the Companys Annual Report on Form 10-K for the fiscal year ending December 31, 2008, and in the Companys Quarterly Reports on Form 10-Q. These risks and uncertainties may cause actual results to differ materially from those indicated by the forward-looking statements. All forward-looking statements made herein are based on information currently available, and TriMas assumes no obligation to update any forward-looking statements.
About TriMas
Headquartered in Bloomfield Hills, Michigan, TriMas Corporation (NASDAQ: TRS) provides engineered and applied products for growing markets worldwide. TriMas Corporation is organized into five strategic business segments: Packaging, Energy, Aerospace & Defense, Engineered Components and Cequent. TriMas Corporation has approximately 3,800 employees at 70 different facilities in 11 countries. We can be found on the internet at www.trimascorp.com.
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