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UNITED STATES |
OMB APPROVAL |
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SECURITIES AND EXCHANGE COMMISSION |
OMB Number: 3235-0060 |
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Washington, D.C. 20549 |
Expires: April 30, 2009 |
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Estimated average burden |
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FORM 8-K |
hours per response . 5.0 |
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CURRENT REPORT |
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Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934 |
Date of Report (Date of earliest event reported) February 9, 2009
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TRIMAS CORPORATION |
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(Exact name of registrant as specified in its charter) |
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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.) |
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39400 Woodward Avenue, Suite 130, Bloomfield Hills, Michigan |
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48304 |
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(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
On February 13, 2009, TSPC, Inc., as Transferor, TriMas Corporation, as Collection Agent, TriMas Company LLC, as Guarantor, and JPMorgan Chase Bank, N.A. as Administrative Agent, amended the Receivables Transfer Agreement (Transfer Agreement) dated as of June 6, 2002, as amended June 3, 2005, July 5, 2005, December 31, 2007, and February 22, 2008 (as amended, the Amended Transfer Agreement). The Amended Transfer Agreement extends the Commitment Expiry Date (all capitalized terms are defined in the Amended Transfer Agreement) to February 12, 2010. The Amended Transfer Agreement updates the Schedule of CP Conduit Purchasers, Committed Purchasers and Funding Agents, amends and restates in its entirety the Amended and Restated Fee Letter dated as of February 22, 2008, and provides committed funding of up to $55 million, consistent with the anticipated level of receivables and future liquidity needs over the term of the Amended Transfer Agreement.
Also on February 13, 2009, in connection with the Amended Transfer Agreement, TriMas Corporation and certain of its subsidiaries as Exiting Sellers and Remaining Sellers, and TSPC, Inc., as Purchaser, amended the Receivables Purchase Agreement dated as of June 6, 2002 (as amended, the Amended Purchase Agreement) (all capitalized terms are defined in the Amended Purchase Agreement). The Amended Purchase Agreement updates the TriMas Corporation subsidiaries participating as sellers.
The descriptions set forth above are qualified by the Amended Transfer Agreement dated as of February 13, 2009, Amended and Restated Fee Letter dated as of February 13, 2009 and Amended Purchase Agreement dated as of February 13, 2009, filed herewith as exhibits 10.1, 10.2 and 10.3, respectively.
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Item 2.01 Disposition of Assets
As previously reported on December 8, 2008 in a Current Report on Form 8-K, TriMas Corporation (the Company) entered into an asset purchase agreement dated December 8, 2008 (the Asset Purchase Agreement), by and among TriMas Company LLC, a wholly-owned subsidiary of the Company, Compac Corporation and LAMTEC Corporation (Lamtec), regarding the sale of substantially all of the assets (exclusive of certain assets, including accounts receivable) of the Companys insulation facings and specialty tapes subsidiary, Compac Corporation.
On February 13, 2009, the Company announced that it had closed the transactions pursuant to the Asset Purchase Agreement on February 9, 2009. The total purchase price on closing, including escrow funds, was $21,000,979.
The foregoing summary is qualified by the Asset Purchase Agreement dated December 8, 2008 filed herewith as Exhibit 10.4.
Item 7.01 Regulation FD Disclosure
On February 13, 2009, the Company issued a press release announcing the renewal of the Amended Transfer Agreement described in Item 1.01 above and the closing of the transactions pursuant to the Asset Purchase Agreement described in Item 2.01 above. A copy of the press release is furnished as Exhibit 99.1 hereto.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits. The following exhibits are furnished herewith:
10.1 |
Amendment dated as of February 13, 2009 to the Transfer Agreement dated as of June 6, 2002, as amended June 3, 2005, July 5, 2005, December 31, 2007, and February 22, 2008. |
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10.2 |
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Amended and Restated Fee Letter dated as of February 13, 2009. |
10.3 |
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Amendment dated as of February 13, 2009 to the Receivables Purchase Agreement dated as of June 6, 2002. |
10.4 |
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Asset Purchase Agreement dated December 8, 2008. |
99.1 |
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Press Release dated February 13, 2009, issued by the Company. |
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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: February 16, 2009 |
/s/ Joshua A. Sherbin |
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Name: |
Joshua A. Sherbin |
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Title: |
Vice President, General Counsel and Secretary |
4
Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 5 dated as of February 13, 2009 (this Amendment) to the Receivables Transfer Agreement dated as of June 6, 2002, as amended June 3, 2005, July 5, 2005, December 31, 2007, and February 22, 2008 (as amended or modified and in effect from time to time, the Agreement), by and among TSPC, INC., as Transferor (the Transferor), TRIMAS CORPORATION, individually, as Collection Agent, TRIMAS COMPANY, LLC, individually, as Guarantor under the Limited Guaranty set forth in Article IX thereto, the several commercial paper conduits identified on Schedule B thereto and their respective permitted successors and assigns (the CP Conduit Purchasers), the several financial institutions identified on Schedule B thereto as Committed Purchasers and their respective permitted successors and assigns (the Committed Purchasers), the agent bank of each CP Conduit Purchaser and Committed Purchaser on Schedule B thereto and its permitted successor and assign (the Funding Agents), and JPMORGAN CHASE BANK, N.A., f/k/a JPMorgan Chase Bank, as Administrative Agent for the benefit of the CP Conduit Purchasers, the Committed Purchasers and the Funding Agents (the Administrative Agent).
In consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not otherwise defined herein will have the meanings set forth in the Agreement. The parties hereto agree that this Amendment shall constitute a Transaction Document for all purposes of the Agreement.
SECTION 2. Amendments to Agreement.
Applicable Margin shall mean 6.50%.
Base Rate or BR shall mean, for any date of determination, a rate per annum equal to the greatest 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), (ii) the sum of (a) 1.50% and (b) the
Federal Funds Rate for such date and (iii) the sum of (a) the Applicable Margin and (b) the Eurodollar Rate.
(i) with respect to Receivables of any Obligor with short-term or long-term ratings of at least A-1 or A by S&P, respectively, and at least P-1 or A2 by Moodys, respectively, 8.0%;
(ii) with respect to Receivables of any Obligor with short-term or long-term ratings of at least A-2 or BBB by S&P, respectively, and at least P-2 or Baa2 by Moodys, respectively, 4.0% (and not qualified under clause (i) above);
(iii) with respect to Receivables of any Obligor with short-term or long-term ratings at or below A-3 or BBB- by S&P, respectively, and at or below P-3 or Baa3 by Moodys, respectively, 2.4% (and not qualified under clause (i) or (ii) above); and
Loss and Dilution Reserve Ratio shall mean, on any day, without duplication, the sum of the Loss Reserve Ratio, the Dilution Reserve Ratio and the Supplemental Audit Reserve.
Accounting Based Consolidation Event means the consolidation, for financial and/or regulatory accounting purposes, of all or any portion of the assets and liabilities of the CP Conduit Purchasers that are subject to this Agreement or any other Transaction Document with all or any portion of the assets and liabilities of an Affected Entity. An Accounting Based Consolidation Event shall be deemed to occur on the date that any such consolidation of the assets and liabilities of the CP Conduit Purchasers shall occur as acknowledged in writing by any Affected Entity.
Affected Entity means (i) any CP Conduit Purchaser or Committed Purchaser, (ii) any insurance company, bank or other funding entity providing liquidity, credit enhancement or back-up purchase support or facilities to the CP Conduit Purchasers, (iii) any agent, administrator or manager of the CP Conduit Purchasers, or (iv) any bank holding company in respect of any of the foregoing.
Delinquency Ratio shall mean, on any day, a fraction, the numerator of which is the aggregate amount of Delinquent Receivables as of the end of the preceding Settlement Period and the denominator of which is the Outstanding Balance of all Receivables.
Supplemental Audit shall have the meaning specified in Section 5.01(d) of the Receivables Transfer Agreement.
Supplemental Audit Date shall mean August 31, 2009.
Supplemental Audit Reserve shall mean (i) prior to the date of the completion of the Supplemental Audit, 0.0% and (ii) from and after the date of the completion of the Supplemental Audit, up to 10.0%, provided, however; the Administrative Agent, in its sole discretion, may, by written notice to the Transferor decrease the Supplemental Audit Reserve. The Supplemental Audit Reserve shall not be duplicative of other reserves or eligibility criteria that are otherwise addressed or excluded through such other reserves or eligibility criteria.
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, a Deposit Report dated within one (1) Business Day prior to the desired date of such Incremental Transfer, together with such other additional information as the Administrative Agent may reasonably request.
(a) Deposit Report. The Collection Agent shall deliver to the Administrative Agent and the Transferor, no later than 4:00 p.m., New York City time, on each Business Day a written report substantially in the form attached hereto as Exhibit D-1 (the Deposit Report) setting forth total Collections received and Receivables Originated on the previous Business Day, Eligible Receivables balance as of the close of business on the previous Business Day, and such other information as the Administrative Agent may reasonably request. The Deposit Report and such daily report may be delivered in an electronic format mutually agreed upon by the Collection Agent and each Funding Agent, or pending such agreement, by facsimile.
(d) If the Transferor is required to pay any additional amount to any Committed Purchaser pursuant to Sections 2.21, 2.22, or 2.26, then such Committed Purchaser shall use reasonable efforts (which shall not require such Committed 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, 2.22, or 2.26, as the case may be, in the future.
SECTION 2.26 Accounting Based Consolidation Event. (a) If an Accounting Based Consolidation Event shall at any time occur then, upon demand by the Administrative Agent, Transferor shall pay to the Administrative Agent, for the benefit of the relevant Affected Entity, such amounts as such Affected Entity reasonably determines will compensate or reimburse such Affected Entity for any resulting (i) fee, expense or increased cost charged to, incurred or otherwise suffered by such Affected Entity, (ii) reduction in the rate of return on such Affected Entitys capital or reduction in the amount of any sum received or receivable by such Affected Entity or (iii) internal capital charge or other imputed cost determined by such Affected Entity to be allocable to Seller or the transactions contemplated in this Agreement in connection therewith. Amounts under this Section 2.26 may be demanded at
any time without regard to the timing of issuance of any financial statement by the CP Conduit Purchasers or by any Affected Entity.
In addition to the foregoing, at any time during the two month period preceding the Supplemental Audit Date and with reasonable prior notice to the Transferor, the Transferor will, and will cause each Seller, during regular business hours, to permit representatives, auditors and other independent contractors of the Administrative Agent to perform an audit of the Receivables, the Sellers and their operations and systems, including permitting such representatives, auditors, and other independent contractors (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, to the extent determined by and in the manner specified by the Administrative Agent in its reasonable discretion for the purpose of producing an audit report for use by the Committed Lenders (the Supplemental Audit). 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 contractor) in connection with the Supplemental Audit and the Administrative Agent shall notify the Transferor of the date of the completion of the Supplemental Audit.
(q) the average Delinquency Ratio for the three preceding Settlement Periods exceeds 10.00%.
(iv) Notwithstanding any other provision of this Agreement to the contrary, any CP Conduit Purchaser or Committed 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 CP Conduit Purchaser or Committed 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 CP Conduit Purchaser or Committed Purchaser from any of its obligations hereunder, or substitute any such pledgee or grantee for such CP Conduit Purchaser or Committed Purchaser as a party hereto.
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, the CP Conduit Purchasers or the Committed 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.
SECTION 3. Amendment to Schedule of CP Conduit Purchasers, Committed Purchasers and Funding Agents. Schedule B to the Agreement is hereby replaced with Annex IV to this Amendment.
SECTION 4. Representations and Warranties. The Transferor hereby represents and warrants to the Administrative Agent, the Funding Agents, the Conduit Purchasers, and the Committed Purchasers that the representations and warranties of the Transferor set forth in the Agreement are true and correct in all material respects, in each case on and as of the date hereof after giving effect to this Amendment and the RPA Amendment (as defined below), except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respect as of such earlier date).
SECTION 5. Governing Law. This Amendment shall be governed by, and construed in accordance with the laws of the State of New York.
SECTION 6. Counterparts. This Amendment may be executed in counterparts, each of which will be an original, but all of which together will constitute a single agreement.
SECTION 7. Agreement in Full Force and Effect. Except as expressly amended hereby, the Agreement will continue in full force and effect in accordance with the provisions thereof as in existence on the date hereof. After the date of the effectiveness hereof, any reference to the Agreement will mean the Agreement as amended by this Amendment.
SECTION 8. Conditions to Effectiveness. This Amendment shall be effective on the date on which each of the following conditions shall have been satisfied:
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered by their duly authorized officers as of the date hereof.
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TSPC, INC., as Transferor |
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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 |
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TRIMAS CORPORATION,
individually and as |
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By: |
/s/ Joshua A. Sherbin |
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Name: Joshua A. Sherbin |
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Title: Vice President and Secretary |
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TRIMAS COMPANY, LLC,
individually and |
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By: |
/s/ A. Mark Zeffiro |
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Name: A. Mark Zeffiro |
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Title: Vice President |
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JPMORGAN CHASE BANK,
N.A., as |
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By: |
/s/ John M. Kuhns |
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Name: John M. Kuhns |
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Title: Executive Director |
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PARK AVENUE RECEIVABLES |
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By: JPMorgan Chase
Bank, N.A., its Attorney- |
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By: |
/s/ John M. Kuhns |
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Name: John M. Kuhns |
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Title: Executive Director |
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JPMORGAN CHASE BANK,
N.A., as |
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By: |
/s/ John M. Kuhns |
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Name: John M. Kuhns |
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Title: Executive Director |
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JPMORGAN CHASE BANK,
N.A., as Funding |
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By: |
/s/ John M. Kuhns |
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Name: John M. Kuhns |
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Title: Executive Director |
ANNEX I
[See attached]
EXHIBIT B
List of Lock-Box Banks and Accounts
Bank Name |
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Account Number |
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Lockbox Number |
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Account Name |
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Comerica Bank |
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1851358885 |
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890127 |
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Arrow Engine Company |
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Comerica Bank |
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1851359164 |
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237401 |
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Cequent Towing Products, Inc. |
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Comerica Bank |
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1851812295 |
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673075 |
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Cequent Electrical Products, Inc. |
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Comerica Bank |
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1851856128 |
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673096 |
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Cequent Electrical Products, Inc. |
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Comerica Bank |
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1851358968 |
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246201 |
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Cequent Trailer Products, Inc. |
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Comerica Bank |
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1851270338 |
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890622 |
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Lamons Metal Gasket Co. |
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Comerica Bank |
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1851358836 |
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49225 |
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Monogram Aerospace Fasteners, Inc. |
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Comerica Bank |
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1851358844 |
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235401 |
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Norris Cylinder Company - A/R |
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Comerica Bank |
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1851358844 |
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242201 |
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Norris Cylinder Company - N/R |
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Comerica Bank |
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1851268522 |
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218001 |
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Rieke Corporation |
ANNEX II
[See attached]
Daily Deposit Report
Facility Limit |
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$55,000,000 |
Co-Purchasers |
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PARCO Funding |
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Transferor: |
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TSPC, Inc. |
Collection Agent: |
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TriMas Corporation |
RECEIVABLES ACTIVITY (in 000s) |
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Beginning Receivables Balance |
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Sales |
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Collections |
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Ending Receivables Balance |
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CONSOLIDATED AGINGS |
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Current, net of Unallocated Cash |
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1-30 Days Past Due |
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31-60 Days Past Due |
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61-90 Days Past Due |
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91+ Days Past Due |
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Total |
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NET RECEIVABLES BALANCE CALCULATION (in 000s) |
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Outstanding Receivables Balance |
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-% of Ineligible Receivables |
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- Ineligibles Receivables (Excl. Delinquent) |
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- Defaulted Receivables (over 91 D.P.D.) |
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Non-Defaulted Receivables |
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- Delinquent but not Defaulted (61-90 D.P.D) |
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Eligible Receivables |
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- Excess Concentrations% |
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- Overconcentrations |
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Net Receivables Balance |
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Maximum Supportable Amount |
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TERMINATION EVENTS |
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Percentage Factor > Maximum% Factor |
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Net Investment > $55,000,000 |
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Current |
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Period |
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NET INVESTMENT INFORMATION |
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Aggregate Net Investment (in 000s) |
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RESERVE PERCENTAGES |
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Loss Reserve Ratio |
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Dilution Reserve Ratio |
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Carrying Cost Reserve Ratio |
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Servicing Fee Reserve Ratio |
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Loss and Dilution Reserve Ratio |
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(i) Total Loss, Dilution and Audit Reserve |
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Total Reserve Required |
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PURCHASES AND SETTLEMENT |
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Percentage Factor |
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Paydown Required? |
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If Yes, how much? |
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Net Investment After Paydown |
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Percentage Factor After Paydown |
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The undersigned, an Officer of TriMas Corporation, as Collection Agent, certifies that the information set forth above is true and correct and it has been performed in all material respects all of its servicing obligations under the Receivables Transfer Agreement required to be performed as of the date hereof:
Signature: |
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Date: |
Daily Recs. Bal.
Weekly Receivables Data |
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Reporting Date: |
12-Feb |
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Applicable Month for Reserve Calculations* |
December-08 |
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Applicable Month for Excess Concentration Calculation* |
December-08 |
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(excl. Delinquent) |
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(91+ Days P.D.) |
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Beg. A/R |
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Gross |
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Total |
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Ending A/R |
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Ineligible |
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Ineligible |
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Defaulted |
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Non Defaulted |
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Date |
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Balance |
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Sales |
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Collections |
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Balance |
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Current |
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1-30 DPD |
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31-60 DPD |
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61-90 DPD |
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91+ DPD |
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Total |
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Receivables% |
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Receivables |
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Receivables |
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Receivables |
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12-Feb-09 |
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92,000 |
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15,973 |
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21,162 |
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94,159 |
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56,254 |
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18,528 |
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10,000 |
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7,531 |
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2,545 |
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94,858 |
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21.40 |
% |
20,153 |
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2,545 |
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71,461 |
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13-Feb-09 |
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94,159 |
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8,656 |
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9,465 |
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93,659 |
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21.40 |
% |
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88,215 |
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14-Feb-09 |
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93,659 |
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12,097 |
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15,617 |
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90,607 |
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21.40 |
% |
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84,973 |
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15-Feb-09 |
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0 |
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16-Feb-09 |
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0 |
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17-Feb-09 |
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18-Feb-09 |
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19-Feb-09 |
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20-Feb-09 |
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21-Feb-09 |
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22-Feb-09 |
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23-Feb-09 |
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24-Feb-09 |
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25-Feb-09 |
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26-Feb-09 |
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27-Feb-09 |
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28-Feb-09 |
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1-Mar-09 |
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2-Mar-09 |
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3-Mar-09 |
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4-Mar-09 |
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5-Mar-09 |
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6-Mar-09 |
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7-Mar-09 |
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8-Mar-09 |
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9-Mar-09 |
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10-Mar-09 |
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11-Mar-09 |
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12-Mar-09 |
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13-Mar-09 |
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14-Mar-09 |
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15-Mar-09 |
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16-Mar-09 |
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17-Mar-09 |
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18-Mar-09 |
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19-Mar-09 |
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20-Mar-09 |
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21-Mar-09 |
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22-Mar-09 |
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23-Mar-09 |
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24-Mar-09 |
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25-Mar-09 |
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26-Mar-09 |
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27-Mar-09 |
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28-Mar-09 |
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29-Mar-09 |
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30-Mar-09 |
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31-Mar-09 |
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1-Apr-09 |
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2-Apr-09 |
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3-Apr-09 |
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4-Apr-09 |
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5-Apr-09 |
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|
6-Apr-09 |
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|
7-Apr-09 |
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|
8-Apr-09 |
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|
9-Apr-09 |
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|
|
Rounded |
|
|
|
(61-90 Days P.D.) |
|
Eligible |
|
Excess |
|
|
|
Net |
|
|
|
Maximum |
|
|
|
|
|
Additional |
|
Additional |
|
|
|
Delinquent but |
|
Receivables |
|
Concentration |
|
Over- |
|
Receivables |
|
Net |
|
Supportable |
|
Paydown |
|
New net |
|
Borrowings |
|
Borrowings |
|
Date |
|
not Defaulted |
|
Balance |
|
% |
|
concentrations |
|
Balance |
|
Investment |
|
Amount |
|
Required |
|
Investment |
|
Available |
|
Available |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12-Feb-09 |
|
7,531 |
|
61,415 |
|
0.00 |
% |
|
|
61,415 |
|
47,000 |
|
43,736 |
|
3,264 |
|
|
|
|
|
|
|
13-Feb-09 |
|
|
|
84,406 |
|
0.00 |
% |
|
|
84,406 |
|
21,682 |
|
|
|
|
|
21,682 |
|
(21,600 |
) |
(21,600 |
) |
14-Feb-09 |
|
|
|
81,382 |
|
0.00 |
% |
|
|
81,382 |
|
21,682 |
|
|
|
|
|
18,757 |
|
(21,600 |
) |
(21,600 |
) |
15-Feb-09 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16-Feb-09 |
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|
|
|
|
|
|
|
|
|
|
|
|
17-Feb-09 |
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|
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|
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|
|
|
|
|
|
|
|
|
|
|
18-Feb-09 |
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|
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|
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|
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|
|
|
|
|
|
|
|
|
19-Feb-09 |
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|
|
|
|
|
|
|
20-Feb-09 |
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|
|
21-Feb-09 |
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|
22-Feb-09 |
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|
23-Feb-09 |
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|
24-Feb-09 |
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|
25-Feb-09 |
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|
26-Feb-09 |
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|
27-Feb-09 |
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28-Feb-09 |
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|
1-Mar-09 |
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|
2-Mar-09 |
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3-Mar-09 |
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|
4-Mar-09 |
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5-Mar-09 |
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6-Mar-09 |
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7-Mar-09 |
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8-Mar-09 |
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9-Mar-09 |
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10-Mar-09 |
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|
11-Mar-09 |
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12-Mar-09 |
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13-Mar-09 |
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14-Mar-09 |
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15-Mar-09 |
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16-Mar-09 |
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17-Mar-09 |
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18-Mar-09 |
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19-Mar-09 |
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20-Mar-09 |
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21-Mar-09 |
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22-Mar-09 |
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23-Mar-09 |
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24-Mar-09 |
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25-Mar-09 |
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26-Mar-09 |
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27-Mar-09 |
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28-Mar-09 |
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29-Mar-09 |
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30-Mar-09 |
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31-Mar-09 |
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1-Apr-09 |
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2-Apr-09 |
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3-Apr-09 |
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4-Apr-09 |
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5-Apr-09 |
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6-Apr-09 |
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7-Apr-09 |
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8-Apr-09 |
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9-Apr-09 |
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2
|
|
(column R of |
|
(column W of |
|
(column U of |
|
(column AC of |
|
(column AG of |
|
(column AI of |
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(column AW of |
|
(column BB of |
|
(column AP of |
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(column AL + |
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Reserves Model) |
|
Reserves Model) |
|
Reserves Model) |
|
Reserves Model) |
|
Reserves Model) |
|
Reserves Model) |
|
Reserves Model) |
|
Reserves Model) |
|
Reserves Model) |
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Total |
|
column AM of |
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Carrying |
|
Servicing |
|
Total |
|
|
|
Loss |
|
Reserves Model) |
|
|
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|
|
Loss |
|
Loss |
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|
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|
|
Dilution |
|
Cost |
|
Fee |
|
Loss and |
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Supplemental |
|
Dilution |
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Default |
|
Reserve |
|
Horizon |
|
Dilution |
|
|
|
Reserve |
|
Reserve |
|
Reserve |
|
Dilution |
|
Audit |
|
and Audit |
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Minimum |
|
|
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Ratio |
|
Ratio |
|
Ratio |
|
Ratio |
|
DSO |
|
Ratio |
|
Ratio |
|
Ratio |
|
Reserve |
|
Reserve |
|
Reserve |
|
Ratio |
|
|
|
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|
|
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Jul-08 |
|
1.02 |
% |
15.51 |
% |
2.65 |
|
1.54 |
% |
36.84 |
|
7.79 |
% |
1.41 |
% |
0.10 |
% |
25.51 |
% |
|
|
|
|
27.51 |
% |
Aug-08 |
|
1.21 |
% |
15.25 |
% |
2.63 |
|
1.52 |
% |
37.44 |
|
7.75 |
% |
1.44 |
% |
0.10 |
% |
25.25 |
% |
|
|
|
|
27.25 |
% |
Sep-08 |
|
1.18 |
% |
16.90 |
% |
2.90 |
|
1.65 |
% |
34.64 |
|
8.21 |
% |
1.33 |
% |
0.10 |
% |
26.90 |
% |
|
|
|
|
28.90 |
% |
Oct-08 |
|
0.93 |
% |
16.61 |
% |
2.83 |
|
1.96 |
% |
34.38 |
|
8.28 |
% |
1.22 |
% |
0.10 |
% |
26.61 |
% |
|
|
|
|
28.61 |
% |
Nov-08 |
|
2.81 |
% |
16.73 |
% |
2.82 |
|
1.78 |
% |
34.86 |
|
8.43 |
% |
1.15 |
% |
0.10 |
% |
26.73 |
% |
0.00 |
% |
|
|
28.73 |
% |
Dec-08 |
|
1.35 |
% |
17.94 |
% |
3.00 |
|
1.57 |
% |
34.02 |
|
8.69 |
% |
0.98 |
% |
0.09 |
% |
27.94 |
% |
0.00 |
% |
27.94 |
% |
29.94 |
% |
3
ANNEX III
[See attached]
Exhibit J
Corporate Name |
|
Trade and Other Names Since 01/09 |
|
|
|
Arrow Engine Company |
|
|
|
|
|
Cequent Performance Products, Inc. |
|
Draw-Tite, Inc. |
|
|
|
Lamons Gasket Company |
|
|
|
|
Lamons Metal Gasket Co. |
|
|
|
Monogram Aerospace Fasteners, Inc. |
|
|
|
|
|
Norris Cylinder Company |
|
|
|
|
|
Rieke Corporation |
|
|
|
|
|
Rieke Leasing Co., Incorporated |
|
|
|
|
|
TriMas Company, LLC |
|
|
ANNEX IV
SCHEDULE B
Schedule of CP Conduit Purchasers,
Committed Purchasers and Funding Agents
CP CONDUIT PURCHASERS:
Park Avenue Receivables Company LLC
10 S. Dearborn Street
Chicago, IL 60603
Suite IL1-0079
Attention: PARCO Funding Manager
Telephone: 312-732-7206
Telecopy: 312-732-1844
E-mail: ABS.Treasury.Dept@jpmorgan.com
CP Conduit Funding Limit: $55,000,000
COMMITTED PURCHASERS:
JPMorgan Chase Bank, as Committed Purchaser for Park Avenue Receivables Company LLC
10 S. Dearborn Street
Chicago, IL 60603
Suite IL1-1729
Attention: Account Manager
Telephone: 312-732-1845
Telecopy: 312-732-3600
E-mail: abf.portfolio.management@jpmorgan.com
Committed Purchaser Commitment: $56,100,000
FUNDING AGENTS:
JPMorgan Chase Bank, as Funding Agent for Park Avenue Receivables Company LLC
10 S. Dearborn Street
Chicago, IL 60603
Suite IL1-0079
Attention: ABS Treasury Department
Telephone: 312-732-7206
Telecopy: 312-732-1844
E-mail: ABS.Treasury.Dept@jpmorgan.com
ANNEX V
[See attached]
EXECUTION COPY
AMENDMENT NO. 1 dated as of February 13, 2009 (this Amendment) to the Receivables Purchase Agreement dated as of June 6, 2002 (as amended or modified and in effect from time to time, the Agreement), by and among TRIMAS CORPORATION, a Delaware corporation (TriMas), COMPAC CORPORATION, DEW TECHNOLOGIES, INC., HI-VOL PRODUCTS LLC, KEO CUTTERS, INC., and RICHARDS MICRO-TOOL, INC., as exiting sellers, (each, individually, an Exiting Seller and collectively, the Exiting Sellers), ARROW ENGINE COMPANY, CEQUENT PERFORMANCE PRODUCTS, INC., LAMONS GASKET COMPANY, MONOGRAM AEROSPACE FASTENERS, INC., NORRIS CYLINDER COMPANY, RIEKE CORPORATION, and RIEKE LEASING CO., INCORPORATED, as remaining sellers, (each, individually, a Remaining Seller and collectively, the Remaining Sellers, together with the Exiting Sellers, the Sellers), and TSPC, INC., a Nevada corporation, as purchaser (in such capacity, the Purchaser).
In consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not otherwise defined herein will have the meanings set forth in the Agreement.
SECTION 2. Amendments to the Agreement.
(d) It is the express intent of the Sellers (including TriMas) 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. Except under the limited circumstances described in Sections 5.01(q), 6.01 and 6.02 hereof, 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), 6.01 and 6.02 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, the Seller and the Purchaser represent and warrants as to itself that each remittance of Collections by the Seller to the Purchaser hereunder will have been (i) in payment of a debt incurred by the Seller in the ordinary course of business or financial affairs of the Seller and the Purchaser and (ii) made in the ordinary course of business or financial affairs of the Seller and 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.
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 may become additional Seller parties hereto. If any such Subsidiary wishes to become an additional Seller, TriMas shall submit a request to such effect in writing to the Purchaser, the Administrative Agent and the Funding Agents. The Administrative Agent and the Funding Agents may, in their sole discretion, withhold their consent to such Subsidiary becoming an additional Seller. If TriMas, the Purchaser, the Administrative Agent, and each Funding Agent 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 3. Termination of Sellers. (a) The parties hereto agree that each of the Exiting Sellers shall cease to be a Seller as of the Effective Date (as defined below), and each of the Exiting Sellers shall be released as parties to the Agreement. Subject to the terms and
2
provisions of Section 8.03 of the Agreement and of the Receivable Transfer Agreement, on the Effective Date each Exiting Seller shall cease selling, and the Purchaser shall cease buying, Receivables and Related Security from such Exiting Seller and a Purchase Termination Date shall be deemed to have occurred, but only with respect to such Exiting Sellers and the Exiting Seller shall have no further obligation under any Transaction Document, other than pursuant to Sections 5.01(q), 6.01 and 6.02 of the Agreement, with respect to Receivables previously sold by it to the Purchaser.
(b) The parties hereto, hereby agree that (i) the Agreement shall remain in full force and effect in all respects except as described in clause (a) above and (ii) the release described in clause (a) above shall not release any Seller (other than the Exiting Sellers) from any of its obligations under the Agreement.
SECTION 4. Representations and Warranties. Each Seller represents and warrants to the Purchaser that the representations and warranties of such Seller set forth in the Agreement are true and correct in all material respects, in each case on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respect as of such earlier date).
SECTION 5. Governing Law. This Amendment shall be governed by, and construed in accordance with the laws of the State of New York.
SECTION 6. Counterparts. This Amendment may be executed in counterparts, each of which will be an original, but all of which together will constitute a single agreement.
SECTION 7. Agreement in Full Force and Effect. Except as expressly amended hereby, the Agreement will continue in full force and effect in accordance with the provisions thereof as in existence on the date hereof. After the date of the effectiveness hereof, any reference to the Agreement will mean the Agreement as amended by this Amendment.
SECTION 8. Conditions to Effectiveness. This Amendment shall be effective on the date on which each of the following conditions shall have been satisfied (the Effective Date):
[Remainder of this page intentionally left blank]
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered by their duly authorized officers as of the date hereof.
|
TRIMAS CORPORATION |
|||
|
|
|||
|
|
|||
|
By: |
|
||
|
Name: |
Title: |
||
|
|
|||
|
As Sellers: |
|||
|
|
|||
|
Arrow Engine Company |
|||
|
Cequent Performance Products, Inc. |
|||
|
Compac Corporation |
|||
|
Dew Technologies, Inc. |
|||
|
Hi-Vol Products LLC |
|||
|
Keo Cutters, Inc. |
|||
|
Lamons Gasket Company |
|||
|
Monogram Aerospace Fasteners, Inc. |
|||
|
Norris Cylinder Company |
|||
|
Richards Micro-Tool, Inc. |
|||
|
Rieke Corporation |
|||
|
Rieke Leasing Co., Incorporated |
|||
|
|
|||
|
|
|||
|
By: |
|
||
|
Name: |
Title: |
||
|
|
|||
|
As Purchaser: |
|||
|
|
|||
|
TSPC, INC. |
|||
|
|
|||
|
By: |
|
||
|
|
Name: |
||
|
|
Title: |
||
Acknowledged and agreed as |
|
|
of the date first above written: |
|
|
|
|
|
JPMORGAN CHASE BANK, as Administrative Agent |
|
|
for the benefit of the CP Conduit Purchasers, |
|
|
the Funding Agents and the Committed Purchasers |
|
|
|
|
|
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
|
ANNEX I
[See attached]
SCHEDULE I TO
RECEIVABLES PURCHASE AGREEMENT
Location of Each Sellers Chief Executive Office
Corporate Name |
|
Address of Chief Executive Office |
|
County |
|
|
|
|
|
Arrow Engine Company |
|
2301 E. Independence, Tulsa, OK 74110 |
|
Tulsa |
|
|
|
|
|
Cequent Performance Products, Inc. |
|
47774 Anchor Court West, Plymouth, MI 48170 |
|
Wayne |
|
|
|
|
|
Lamons Gasket Company |
|
7300 Airport Boulevard, Houston, TX 77061 |
|
Fort Bend |
|
|
|
|
|
Monogram Aerospace Fasteners, Inc. |
|
3423 S. Garfield Ave., City of Commerce, CA 90040 |
|
Los Angeles |
|
|
|
|
|
Norris Cylinder Company |
|
1535 FM 1845 S., P.O. Box 7486, Longview, TX 75603 |
|
Gregg |
|
|
|
|
|
Rieke Corporation |
|
500 W. Seventh St., Auburn, IN 46706 |
|
De Kalb |
|
|
|
|
|
Rieke Leasing Co., Incorporated |
|
500 W. Seventh St., Auburn, IN 46706 |
|
De Kalb |
Exhibit 10.2
EXECUTION COPY
TSPC, Inc.
Hughes Center, Suite 460
3993 Howard Hughes Parkway
Las Vegas, NV 89109
February 13, 2009
JPMorgan Chase Bank, N.A.
as Administrative Agent
10 South Dearborn, Mail Suite IL1-1729
Chicago, Illinois 60603
Re: TriMas Receivables Facility Third Amended and Restated Fee Letter
Ladies and Gentlemen:
Reference is hereby made to that certain Receivables Transfer Agreement, dated as of June 6, 2002, as amended as of June 3, 2005, July 5, 2005, December 31, 2007, February 22, 2008 and February 13, 2009 (as amended, supplemented or otherwise modified and in effect from time to time, the Receivables Transfer Agreement), by and among TSPC, Inc., a Nevada corporation (the Transferor), TriMas Corporation, a Delaware corporation, individually (the Parent), as collection agent (in such capacity, the Collection Agent) and TriMas Company, LLC, a Delaware limited liability company (TriMas LLC), as guarantor under the Limited Guaranty set forth in Article IX thereto (in such capacity, the Guarantor), the several commercial paper conduits identified on Schedule B thereto and their respective permitted successors and assigns (the CP Conduit Purchasers), the several financial institutions identified on Schedule B thereto and their respective permitted successors and assigns (the Committed Purchasers), the agent bank set forth opposite the name of each CP Conduit Purchaser and Committed Purchaser on Schedule B thereto and its permitted successor and assign (the Funding Agent with respect to the CP Conduit Purchasers and Committed Purchasers) and JPMorgan Chase Bank, N.A., f/k/a JPMorgan Chase Bank, as Administrative Agent (in such capacity, the Administrative Agent) for the benefit of the CP Conduit Purchasers and the Committed Purchasers. Capitalized terms used herein and not otherwise defined have the meanings assigned to such terms in the Receivables Transfer Agreement.
In connection with the transactions contemplated by the Receivables Transfer Agreement and the other Transaction Documents, the parties hereto hereby agree as follows:
1. Program Fee
Upfront Fee - On the date hereof, the Transferor hereby agrees to pay to the Administrative Agent, for the benefit of each Committed Purchaser, a one time
fee, in an aggregate amount equal to the product of (a) 0.50%, and (b) the total of the Commitments of the Committed Purchasers.
Used Fee - From the date hereof up to the occurrence of a Termination Date the Transferor hereby agrees to pay to the Administrative Agent, for the benefit of the CP Conduit Purchasers, a used fee for each Settlement Period payable on each Settlement Date (or if such day is not a Business Day, the next succeeding Business Day), in an amount equal to the product of (a) the average daily Net Investment, of the CP Conduit Purchasers, during the related Settlement Period, computed on the basis of the actual number of days elapsed in such Settlement Period in a year of 360 days, and (b) 4.50%.
Unused Fee - From the date hereof up to the occurrence of a Termination Date, the Transferor hereby agrees to pay to the Administrative Agent, for the benefit of the CP Conduit Purchasers or the Committed Purchasers, as applicable, an unused fee for each Settlement Period payable on each Settlement Date (or if such day is not a Business Day, the next succeeding Business Day), in an amount equal to the product of (a) the difference between (i) the average daily Aggregate Commitment and (ii) the average daily Net Investment during the related Settlement Period, computed on the basis of the actual number of days elapsed in such Settlement Period in a year of 360 days, and (b) 2.25%.
2. Payment or Reimbursement of Miscellaneous Expenses.
The Transferor hereby agrees to pay (or to reimburse the Administrative Agent, any CP Conduit Purchaser, any Committed Purchaser or any Funding Agent if the Administrative Agent, such CP Conduit Purchaser, such Committed Purchaser or such Funding Agent has previously paid) all 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, the CP Conduit Purchasers, the Committed Purchasers and/or the Funding Agents) incurred by or on behalf of the Administrative Agent, the CP Conduit Purchasers, the Committed Purchasers and the Funding Agents.
3. Miscellaneous.
(a) This letter agreement is the Fee Letter specified in the Receivables Transfer Agreement, amends and restates in its entirety that certain Second Amended and Restated Fee Letter dated February 22, 2008, among the Transferor, the Administrative Agent, and Park Avenue Receivables Company LLC (the Second Amended and Restated Fee Letter), and shall be entitled to all of the rights and the benefits, and subject to all of the limitations and restrictions of, the Receivables Transfer Agreement as is such rights, benefits, limitations and restrictions were set forth herein in their entirety.
(b) This letter agreement may be executed in any number of counterparts, each of which, taken together, shall constitute one and the same agreement.
(c) No amendment, modification or waiver of any provision of this letter agreement shall be effective without the written agreement of each of the parties hereto. Any waiver or consent shall be effective only in the specific instance and for the specified purpose for which given.
(d) This letter agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
If you are in agreement with the foregoing, kindly indicate your consent in the space provided below.
|
TSPC, Inc. |
|
|
as Transferor |
|
|
|
|
|
|
|
|
by: |
/s/ Robert J. Zalupski |
|
|
Name: Robert J. Zalupski |
|
|
Title: Vice President and Treasurer |
Accepted and agreed as of the |
|
|
date first above written: |
|
|
|
|
|
JPMorganChase Bank, N.A., |
|
|
as Administrative Agent |
|
|
|
|
|
|
|
|
by: |
/s/ John M. Kuhns |
|
|
Name: John M. Kuhns |
|
|
Title: Executive Director |
|
|
|
|
Park Avenue Receivables Company LLC |
|
|
|
|
|
by: JPMorgan Chase Bank, N.A., its Attorney-In-Fact |
|
|
|
|
|
by: |
/s/ John M. Kuhns |
|
|
Name: John M. Kuhns |
|
|
Title: Executive Director |
|
|
|
|
|
|
|
JPMorgan Chase Bank, N.A., |
|
|
as Committed Purchaser for Park Avenue Receivables Company LLC |
||
|
|
|
|
|
|
by: |
/s/ John M. Kuhns |
|
|
Name: John M. Kuhns |
|
|
Title: Executive Director |
|
|
|
|
|
|
|
JPMorgan Chase Bank, N.A., |
|
|
as Funding Agent for Park Avenue Receivables Company LLC |
|
|
|
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by: |
/s/ John M. Kuhns |
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Name: John M. Kuhns |
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Title: Executive Director |
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Exhibit 10.3
EXECUTION COPY
AMENDMENT NO. 1 dated as of February 13, 2009 (this Amendment) to the Receivables Purchase Agreement dated as of June 6, 2002 (as amended or modified and in effect from time to time, the Agreement), by and among TRIMAS CORPORATION, a Delaware corporation (TriMas), COMPAC CORPORATION, DEW TECHNOLOGIES, INC., HI-VOL PRODUCTS LLC, KEO CUTTERS, INC., and RICHARDS MICRO-TOOL, INC., as exiting sellers, (each, individually, an Exiting Seller and collectively, the Exiting Sellers), ARROW ENGINE COMPANY, CEQUENT PERFORMANCE PRODUCTS, INC., LAMONS GASKET COMPANY, MONOGRAM AEROSPACE FASTENERS, INC., NORRIS CYLINDER COMPANY, RIEKE CORPORATION, and RIEKE LEASING CO., INCORPORATED, as remaining sellers, (each, individually, a Remaining Seller and collectively, the Remaining Sellers, together with the Exiting Sellers, the Sellers), and TSPC, INC., a Nevada corporation, as purchaser (in such capacity, the Purchaser).
In consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not otherwise defined herein will have the meanings set forth in the Agreement.
SECTION 2. Amendments to the Agreement.
(d) It is the express intent of the Sellers (including TriMas) 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. Except under the limited circumstances described in Sections 5.01(q), 6.01 and 6.02 hereof, 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), 6.01 and 6.02 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, the Seller and the Purchaser represent and warrants as to itself that each remittance of Collections by the Seller to the Purchaser hereunder will have been (i) in payment of a debt incurred by the Seller in the ordinary course of business or financial affairs of the Seller and the Purchaser and (ii) made in the ordinary course of business or financial affairs of the Seller and 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.
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 may become additional Seller parties hereto. If any such Subsidiary wishes to become an additional Seller, TriMas shall submit a request to such effect in writing to the Purchaser, the Administrative Agent and the Funding Agents. The Administrative Agent and the Funding Agents may, in their sole discretion, withhold their consent to such Subsidiary becoming an additional Seller. If TriMas, the Purchaser, the Administrative Agent, and each Funding Agent 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 3. Termination of Sellers. (a) The parties hereto agree that each of the Exiting Sellers shall cease to be a Seller as of the Effective Date (as defined below), and each of the Exiting Sellers shall be released as parties to the Agreement. Subject to the terms and provisions of Section 8.03 of the Agreement and of the Receivable Transfer Agreement, on the Effective Date each Exiting Seller shall cease selling, and the Purchaser shall cease buying, Receivables and Related Security from such Exiting Seller and a Purchase Termination Date shall be deemed to have occurred, but only with respect to such Exiting Sellers and the Exiting
2
Seller shall have no further obligation under any Transaction Document, other than pursuant to Sections 5.01(q), 6.01 and 6.02 of the Agreement, with respect to Receivables previously sold by it to the Purchaser.
(b) The parties hereto, hereby agree that (i) the Agreement shall remain in full force and effect in all respects except as described in clause (a) above and (ii) the release described in clause (a) above shall not release any Seller (other than the Exiting Sellers) from any of its obligations under the Agreement.
SECTION 4. Representations and Warranties. Each Seller represents and warrants to the Purchaser that the representations and warranties of such Seller set forth in the Agreement are true and correct in all material respects, in each case on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respect as of such earlier date).
SECTION 5. Governing Law. This Amendment shall be governed by, and construed in accordance with the laws of the State of New York.
SECTION 6. Counterparts. This Amendment may be executed in counterparts, each of which will be an original, but all of which together will constitute a single agreement.
SECTION 7. Agreement in Full Force and Effect. Except as expressly amended hereby, the Agreement will continue in full force and effect in accordance with the provisions thereof as in existence on the date hereof. After the date of the effectiveness hereof, any reference to the Agreement will mean the Agreement as amended by this Amendment.
SECTION 8. Conditions to Effectiveness. This Amendment shall be effective on the date on which each of the following conditions shall have been satisfied (the Effective Date):
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered by their duly authorized officers as of the date hereof.
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TRIMAS CORPORATION |
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By: |
/s/ Joshua H. Sherbin |
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Name: Joshua H. Sherbin |
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Title: Vice President & Secretary |
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As Sellers: |
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Arrow Engine Company |
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Cequent Performance 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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Lamons Gasket Company |
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Monogram Aerospace Fasteners, 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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By: |
/s/ Robert J. Zalupski |
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Name: Robert J. Zalupski |
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Title: Vice President & Treasurer |
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As Purchaser: |
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TSPC, INC. |
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By: |
/s/ A. Mark Zeffiro |
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Name: A. Mark Zeffiro |
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Title: Vice President |
Acknowledged and agreed as |
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of the date first above written: |
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JPMORGAN CHASE BANK, as Administrative Agent |
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for the benefit of the CP Conduit Purchasers, |
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the Funding Agents and the Committed Purchasers |
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By: |
/s/ John M. Kuhns |
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Name: John M. Kuhns |
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Title: Executive Director |
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ANNEX I
[See attached]
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 Performance Products, Inc. |
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47774 Anchor Court West, Plymouth, MI 48170 |
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Wayne |
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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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Rieke Leasing Co., Incorporated |
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500 W. Seventh St., Auburn, IN 46706 |
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De Kalb |
Exhibit 10.4
Execution Version
ASSET PURCHASE AGREEMENT
BETWEEN
LAMTEC CORPORATION,
COMPAC CORPORATION
AND
TRIMAS COMPANY LLC
Dated as of December 8, 2008
TABLE OF CONTENTS
Sections |
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Page |
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1. |
Definitions |
1 |
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2. |
Sale and Purchase Obligations |
5 |
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2.1 |
Sale and Purchase of Assets |
5 |
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2.2 |
Excluded Assets |
5 |
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2.3 |
Assumption of Liabilities |
6 |
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2.4 |
Excluded Liabilities |
6 |
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2.5 |
Consideration |
6 |
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2.6 |
Purchase Price Adjustment |
7 |
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2.7 |
Transfer Taxes; Prorations and Adjustments |
7 |
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2.8 |
Escrow Funds |
7 |
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2.9 |
Allocation of Purchase Price |
7 |
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3. |
Closing |
8 |
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3.1 |
The Closing |
8 |
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3.2 |
Closing Deliveries of Seller |
8 |
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3.3 |
Closing Deliveries of Buyer |
9 |
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4. |
Representations and Warranties of Seller |
10 |
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4.1 |
Organization; Power and Authority; Authorization; Due Execution; No Conflicts |
10 |
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4.2 |
Title to and Condition of Purchased Assets |
10 |
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4.3 |
Claims; Litigation; Compliance with Laws |
11 |
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4.4 |
Permits; Licenses |
11 |
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4.5 |
Assigned Agreements |
11 |
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4.6 |
Proprietary Rights |
12 |
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4.7 |
Taxes |
12 |
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4.8 |
Environmental Matters |
12 |
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4.9 |
Consents |
12 |
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4.10 |
Brokers |
13 |
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5. |
Representations and Warranties of Buyer |
13 |
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5.1 |
Organization; Power and Authority; Authorization; Due Execution; No Conflicts |
13 |
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5.2 |
Brokers |
14 |
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5.3 |
Financial Ability |
14 |
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5.4 |
Consents |
14 |
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5.5 |
WARN Act |
14 |
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6. |
Buyer Acknowledgement |
14 |
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6.1 |
No Other Representations or Warranties |
14 |
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7. |
Covenants |
15 |
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7.1 |
Conduct Through the Closing Date |
15 |
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7.2 |
Bulk Sales Notification Requirements |
15 |
2
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7.3 |
Consents |
16 |
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7.4 |
Advice of Changes Prior to Closing |
16 |
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7.5 |
Notice of Litigation |
16 |
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7.6 |
Access to Records; Inspection |
16 |
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7.7 |
Exclusivity |
16 |
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7.8 |
Litigation Support |
17 |
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8. |
Conditions Precedent to the Parties Obligations to Close |
18 |
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8.1 |
Buyers Conditions Precedent |
18 |
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8.2 |
Sellers Conditions Precedent |
18 |
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8.3 |
Mutual Condition Precedent |
19 |
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9. |
Termination |
19 |
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10. |
Indemnification |
19 |
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10.1 |
Indemnification by Seller and the Shareholder |
19 |
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10.2 |
Indemnification by Buyer |
20 |
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10.3 |
Indemnification Procedures |
20 |
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10.4 |
Survival of Indemnification Obligations |
21 |
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10.5 |
Limitation of Indemnification; Other Indemnification Matters |
21 |
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11. |
Post-Closing Transfer of Purchased Assets |
22 |
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12. |
Miscellaneous |
23 |
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12.1 |
Expenses |
23 |
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12.2 |
Assignment |
23 |
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12.3 |
Notice |
23 |
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12.4 |
Entire Agreement |
24 |
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12.5 |
Press Releases and Announcements |
24 |
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12.6 |
Interpretation |
25 |
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12.7 |
Severability |
25 |
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12.8 |
Counterparts and Effectiveness |
25 |
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12.9 |
Applicable Law |
25 |
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12.10 |
No Third Party Beneficiary |
26 |
3
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement is made as of December 8, 2008, between LAMTEC CORPORATION, a New Jersey corporation (Buyer), COMPAC CORPORATION, a Delaware corporation (Seller), and TRIMAS COMPANY LLC, a Delaware limited liability company (the Shareholder).
Recitals
A. Seller is engaged in the insulation and specialty tape business (the Business).
B. Buyer desires to purchase, and Seller desires to sell, certain assets associated with the Business, subject to the terms and conditions of this Agreement and in connection with the other transactions contemplated by this Agreement and the Related Agreements (the Transactions).
Therefore, the parties agree as follows:
1. Definitions.
(a) The following terms, as used herein, have the following meanings:
Affiliate of any particular Person means any other Person controlling, controlled by, or under common control with such particular Person, where control means the possession, directly or indirectly, of the power to direct the management and policies or a Person whether through the ownership of voting securities, contract or otherwise.
Agreement means this Asset Purchase Agreement and all exhibits and schedules to this Asset Purchase Agreement, as amended or supplemented from time to time.
Benefit Plan means any employee benefit plan (as such term is defined in ERISA §3(3)) and any executive compensation, bonus, stock purchase, stock option, severance plan, salary continuation, vacation, sick leave, fringe benefit, incentive, insurance arrangement, or similar material plan or arrangement for one or more employees that is not subject to ERISA.
Closing Inventory Book Value means the book value of the Inventory as of the Closing Date but without taking into account the transactions contemplated by this Agreement, determined under GAAP using Sellers historical accounting principles for financial statements regarding the Business, consistently applied.
Code means the Internal Revenue Code of 1986, as amended (or any successor thereto).
Consents means any registration or filing with, consent or approval of, notice to, or action by any person or Governmental Authority which is required or necessary in order to permit the transfer of the Purchased Assets to Buyer or to permit the operation by Buyer of the Business.
Environmental Laws means any applicable Law which relates to protection of the environment from, or the remediation of, pollution, including, those relating to the release, use,
presence, storage, recycling, treatment, generation, processing, handling, production, abatement, removal, remediation, exposure to or disposal of hazardous materials, including, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, and regulations thereunder; the Federal Clean Air Act, as amended, and regulations thereunder; the Resource Conservation and Recovery Act, as amended, and regulations thereunder; the Federal Water Pollution Control Act, as amended, and regulations thereunder; and the Occupational Safety and Health Act of 1970, as amended, and regulations thereunder; any common law duty or standard of care; and any Permit, as hereinafter defined.
ERISA means the Employee Income Retirement Security Act of 1974, as amended.
Escrow Agent means RBS Citizens, National Association, d/b/a Charter One.
GAAP means United States generally accepted accounting principles, as in effect from time to time, consistently applied.
Governmental Authority means any domestic or foreign government, including any federal, state, territorial or municipal government, and any government agency, tribunal, commission or other authority exercising or purporting to exercise executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, government.
Hazardous Substances means, without limitation, any flammable explosives, radon, radioactive materials, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum and petroleum-based materials, methane, hazardous materials, hazardous wastes, hazardous or toxic substances and any other conditions or substances defined or regulated under any Environmental Law.
Inventory means all inventories of Seller that are used by Seller for the conduct of the Business, including all finished goods, work in process, raw materials, spare parts and all other materials and supplies.
Laws means all applicable foreign, federal, state, local or municipal laws, zoning and other statutes, ordinances, rules, regulations, building and other codes, permits and licenses, court and administrative orders, judgments and decrees and common law and equitable doctrines.
Liabilities means all costs, expenses, charges, debts, liabilities, claims, demands and obligations, whether primary or secondary, direct or indirect, asserted or unasserted, known or unknown, accrued or unaccrued, liquidated or unliquidated, due or to become due, fixed, contingent, absolute or otherwise.
Material Adverse Effect means any material adverse effect on the physical condition of the Purchased Assets, taken as a whole.
Permits means any and all permits, licenses, approvals, orders, consents, registrations, qualifications and authorizations used in the conduct of the Business.
Person means any individual, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited liability company, entity or governmental entity
2
(whether federal, state, county, city or otherwise and including any instrumentality, division, agency or department thereof).
Proprietary Rights means all of the following items owned by, issued to or licensed to, Seller or used by or necessary for the conduct of the Business as conducted, as contemplated to be conducted or as has ever been conducted at any time, along with all income, royalties, damages and payments due or payable at the Closing or thereafter, including damages and payments for past, present or future infringements or misappropriations thereof, the right to sue and recover for past infringements or misappropriations thereof and any and all corresponding rights or interests that, now or hereafter, may be secured throughout the world: (i) patents, patent applications, patent disclosures and inventions (whether or not patentable and whether or not reduced to practice) and any reissue, continuation, continuation-in-part, division, revision, extension or reexamination thereof; (ii) trademarks, service marks, trade dress, logos, trade names and corporate names, together with all translations, adaptations, derivations, and combinations, including all goodwill associated therewith; (iii) copyrights, registered or unregistered and copyrightable works; (iv) mask works; (v) all registrations, applications and renewals for any of the foregoing; (vi) trade secrets and confidential information (including ideas, formulae, compositions, know-how, manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, technical data, financial, business and marketing information and plans, and customer and supplier lists, pricing and cost information, and related information); (vii) computer software and software systems (including data, databases and related documentation); (viii) other proprietary rights; (ix) licenses or other agreements to or from third parties regarding the foregoing; and (x) all copies and tangible embodiments of the foregoing (in whatever form or medium), in each case including the items set forth on Schedule 4.6.
Related Agreement means the Bill of Sale, the Assignment and Assumption Agreement, the Escrow Agreement and all other agreements, instruments and certificates delivered in connection with this Agreement or the Transactions, and all exhibits and schedules thereto, each as amended or supplemented from time to time.
Target Closing Inventory Book Value means $8,451,000.
Tax Return means any return, declaration, report, claim for refund or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.
Taxes includes (i) all present and future federal, state, local or foreign taxes, surtaxes, duties, levies, imposts, rates, fees, assessments, withholdings, dues and other charges of any nature imposed by any Governmental Authority, including income, capital (including large corporations), withholding, consumption, sales, gross receipts, use, transfer, goods and services or other value-added, single business, environmental, excise, customs, anti-dumping, countervail, net worth, stamp, registration, franchise, payroll, employment, health, education, business, school, property, local improvement, development, education development and occupation taxes, surtaxes, duties, levies, imposts, rates, fees, assessments, withholdings, dues and charges, (ii) any Liability for the payment of any amounts of the type described in clause (i) as a result of being a member of an affiliated, combined, consolidated, or unitary group for any tax period, (iii) any
3
Liability for the payment of any amounts of the type described in clause (i) as a result of being a Person required by law to withhold or collect taxes imposed on another Person, (iv) any Liability for the payment of amounts described in clause (i), (ii) or (iii) as a result of being a transferee of, or a successor in interest to, any Person or as a result of an express or implied obligation to indemnify any Person, and (v) any and all interest, fines, penalties, additions to tax and additional amounts imposed in connection with or with respect to any amounts described in clause (i), (ii), (iii) or (iv).
(b) In addition, the following terms, as used herein, have the meanings set forth in the applicable provisions referenced below:
Adjustable Cash Purchase Price |
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Section 2.5(b) |
Assigned Agreements |
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Section 2.1(d) |
Assignment and Assumption Agreement |
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Section 3.2(b) |
Assumed Liabilities |
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Section 2.3 |
Basket |
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Section 10.5(a) |
Bill of Sale |
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Section 3.2(a) |
Business |
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Recital A |
Buyer |
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Introductory Paragraph |
Buyer Indemnified Parties |
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Section 10.1 |
Cash Purchase Price |
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Section 2.5(b). |
Closing |
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Section 3.1 |
Closing Date |
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Section 3.1 |
Company Transaction |
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Section 7.7 |
Confidentiality Provisions |
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Section 12.4 |
Escrow Agreement |
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Section 3.2(c) |
Escrow Claim Amount |
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Section 2.8 |
Escrow Funds |
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Section 2.5(b) |
Escrow Period |
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Section 2.8 |
Excluded Assets |
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Section 2.2 |
Excluded Liabilities |
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Section 2.4 |
Extension Period |
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Section 11 |
Indemnified Party |
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Section 10.3 |
Indemnifying Party |
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Section 10.3 |
Losses |
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Section 10.1 |
Material Adverse Effect |
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Section 4.3 |
Parent |
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Section 12.4 |
Permitted Liens |
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Section 7.1(d) |
Purchased Assets |
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Section 2.1 |
Purchase Price |
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Section 2.5 |
Purchase Price Adjustment Amount |
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Section 2.6(a) |
Purchase Price Allocation |
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Section 2.8 |
Rejected Inventory |
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Section 2.8 |
Removal Period |
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Section 11 |
Seller |
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Introductory Paragraph |
Seller Consents |
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Section 7.3 |
Sellers Facility |
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Section 4.4 |
4
Shareholder |
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Introductory Paragraph |
Storage Fee |
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Section 11 |
Transactions |
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Recital B |
WARN Act |
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Section 5.5 |
2. Sale and Purchase Obligations.
2.1 Sale and Purchase of Assets.
Notwithstanding anything in this Agreement to the contrary, no contract, agreement, or license, of Seller that is part of the Purchased Assets and that is not capable of being delegated, assigned or transferred to Buyer without the consent or waiver of another party, or under which any delegation, assignment transfer or purported delegation, assignment or delegation to Buyer would constitute a violation, breach or default, shall be delegated, assigned or transferred to Buyer without having first obtained such required consent or waiver and, to the extent such consents and approvals are not obtained and in full force and effect as of the Closing Date and Buyer nevertheless proceeds to close the Transactions, Seller shall use commercially reasonable efforts to cooperate with Buyer after the Closing (i) to establish lawful arrangements which result in the benefits and obligations under such contracts, agreements, and licenses being apportioned in a manner that is consistent with the purpose and intention of this Agreement and (ii) if so requested by Buyer and at Buyers expense, to obtain any such consents and waivers, and enforce Sellers rights under such contracts, agreements, and licenses on behalf and for the benefit of, and as directed by, Buyer.
2.2 Excluded Assets.
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2.3 Assumption of Liabilities.
Buyer shall assume, become liable for and pay or perform when due (a) Sellers obligations arising or accruing after the Closing under the Assigned Agreements and (b) all other Liabilities or obligations arising from the post-Closing operation or ownership of the Purchased Assets (the Assumed Liabilities).
2.4 Excluded Liabilities.
2.5 Consideration.
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2.6 Purchase Price Adjustment.
2.7 Transfer Taxes; Prorations and Adjustments.
All federal, state and local sales, use, excise, documentary, stamp taxes and all other Taxes, duties, or fees properly payable on and in connection with Sellers conveyance, assignment, transfer or delivery of the Purchased Assets to Buyer, whether levied on Buyer or Seller, shall be borne equally by Buyer and Seller. The parties will also prorate such other amounts related to the Purchased Assets as of the Closing Date as they deem appropriate.
2.8 Escrow Funds.
If a customer of the Business (other than any of Buyers Affiliates) returns or rejects Inventory (excluding raw materials) included in the Purchased Assets during the Escrow Period (Rejected Inventory), then, subject to the terms of the Escrow Agreement, Buyer may make a claim, during the first twelve (12) months following the Closing Date (the Escrow Period), to recover from the Escrow Funds an amount equal to the amount credited or refunded to the customer (the Escrow Claim Amount). Buyers sole source of recovery under this Section 2.8 will be the Escrow Funds. Seller will use its reasonable best efforts to close out or reduce consigned Inventory prior to the Closing.
2.9 Allocation of Purchase Price.
Prior to the Closing Date, Buyer and Seller shall allocate the Purchase Price, the Assumed Liabilities, and all other relevant items (including, for example, any adjustments or additions to the Purchase Price), in accordance with Section 1060 of the Code (and any similar provision of state, local or foreign law, as appropriate) (the Purchase Price Allocation). A schedule setting forth the parties agreement on such Purchase Price Allocation shall be agreed upon by the parties prior to the Closing; provided that the Purchase Price Allocation shall
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allocate $8,500,000 to Sellers goodwill and the Proprietary Rights included as part of the Purchased Assets. In the event that, after the Purchase Price Allocation is determined, the Purchase Price is adjusted, the Purchase Price Allocation shall also be adjusted. To the extent permitted by the Code or other applicable tax law, any adjustments to the Purchase Price shall be allocated, to the extent possible, to the classes of assets that were the subject of the adjustments to the Purchase Price. The Purchase Price Allocation, including any adjustments thereto, will be binding on Buyer and Seller. Each of the Parties shall file all Tax Returns (including amended returns, claims for refunds, and IRS Form 8594) in a manner consistent with the Purchase Price Allocation, including any adjustments thereto. No party will take any position (whether in audits or similar proceedings, Tax Returns, refund claims, or otherwise) that is inconsistent with such allocation, except as required to do so by applicable Law. Each of Buyer and Seller (and Sellers Affiliates, as applicable) will use its commercially reasonable best efforts to sustain such allocation in any subsequent audit, similar proceeding, appeal, or court proceeding.
3. Closing.
3.1 The Closing.
Unless earlier terminated pursuant to Section 9, the parties agree that the Closing under this Agreement will be held on the later of February 9, 2009 or on the fifth business day after the satisfaction or waiver of all conditions to the obligations of the parties to consummate the transactions contemplated hereby, or at such other place, day and time as Buyer and Seller shall mutually agree upon. The consummation of the transactions contemplated by this Agreement shall be deemed to be effective at such place, day and time as agreed to by the parties and are sometimes referred to in this Agreement as the Closing, and such date is sometimes referred to as the Closing Date.
3.2 Closing Deliveries of Seller.
At the Closing, Seller shall, in addition to other items specified elsewhere in this Agreement, take the following actions:
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3.3 Closing Deliveries of Buyer.
At the Closing, Buyer shall, in addition to other items specified elsewhere in this Agreement, take the following actions:
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4. Representations and Warranties of Seller.
Seller represents and warrants to Buyer that the statements made in this Section 4 are true and correct as of the date of this Agreement and will be true and correct as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Section 4), except as set forth in the schedules to be delivered by Seller to Buyer upon execution of this Agreement by Seller and Buyer.
4.1 Organization; Power and Authority; Authorization; Due Execution; No Conflicts.
4.2 Title to and Condition of Purchased Assets.
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4.3 Claims; Litigation; Compliance with Laws.
4.4 Permits; Licenses.
Schedule 4.4 sets forth all material Permits Seller has with respect to the Business or the Purchased Assets (other than Permits that relate specifically to the operation of the Business at Sellers Hackettstown, New Jersey facility (Sellers Facility)). Except as set forth on Schedule 4.4, Seller has all Permits required under any Law for the operation of the Business and the ownership and operation of the Purchased Assets, except where such failure to hold a Permit would not reasonably be expected to have a Material Adverse Effect or where such Permits relate specifically to the operation of the Business at Sellers Facility. Except as set forth on Schedule 4.4, Seller is in compliance in all material respects with all Permits, and to Sellers Knowledge, Seller is neither in default nor has it received any written notice of any claim of default with respect to any such Permit, except where such a default or notice relates specifically to the operation of the Business at Sellers Facility.
4.5 Assigned Agreements.
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4.6 Proprietary Rights.
4.7 Taxes.
Except as set forth in Schedule 4.7:
4.8 Environmental Matters.
Except as set forth on Schedule 4.8, to Sellers Knowledge, Seller has not used any of the Purchased Assets to produce, generate, store, handle, transport or dispose of any Hazardous Substance in violation of any Environmental Law.
4.9 Consents.
Except as set forth on Schedule 4.9, no material consent, approval, authorization, license or order of, registration or filing with, or notice to, any Governmental Authority as of the Closing Date is necessary to be obtained, made or given by Seller in connection with the execution,
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delivery and performance by Seller of this Agreement or the consummation by Seller of the Transactions.
4.10 Brokers.
Seller (i) has not dealt with any broker or finder in connection with the Transactions; (ii) has not caused or created any Liability to any broker in connection with the Transactions; and (iii) is not aware of any claim from any third party that it is entitled to brokerage, finders or other similar fees in connection with the Transactions.
5. Representations and Warranties of Buyer.
Buyer represents and warrants to Seller that the statements made in this Section 5 are true and correct as of the date of this Agreement and will be true and correct as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Section 5).
5.1 Organization; Power and Authority; Authorization; Due Execution; No Conflicts.
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5.2 Brokers.
Buyer (i) has not dealt with any broker or finder in connection with the Transactions; (ii) has not caused or created any Liability to any broker or finder in connection with the Transactions; or (iii) is not aware of any claim from any third party that it is entitled to brokerage, finders or other similar fees in connection with the Transactions.
5.3 Financial Ability.
Buyer has sufficient cash funds available to pay the Purchase Price, and Buyers payment of the Purchase Price will not render Buyer insolvent.
5.4 Consents.
Except as set forth on Schedule 5.4, no material consent, approval, authorization, license or order of, registration or filing with, or notice to, any federal, state, local, foreign or other court, administrative agency or commission, other Governmental Authority or regulatory body or any other Person as of the Closing Date is necessary to be obtained, made or given by Buyer in connection with the execution, delivery and performance by Buyer of this Agreement or the consummation by Buyer of the Transactions.
5.5 WARN Act.
Buyer agrees that it will comply in all respects with the Federal Worker Adjustment and Retraining Notification Act of 1988, as amended (the WARN Act) and any applicable state plant closing or mass layoff Laws or regulations. Seller will terminate all of its employees affected by the Transactions prior to or at the Closing, regardless of whether Buyer might subsequently hire such employees.
6. Buyer Acknowledgement.
6.1 No Other Representations or Warranties.
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7. Covenants.
7.1 Conduct Through the Closing Date.
Except as otherwise contemplated by this Agreement, or with written consent of Buyer (which consent will not be unreasonably withheld or delayed), during the period from the date of this Agreement to the Closing Date, Seller will use its commercially reasonably efforts to:
7.2 Bulk Sales Notification Requirements.
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7.3 Consents.
7.4 Advice of Changes Prior to Closing.
Between the date of this Agreement and the Closing Date, the parties will promptly notify each other in writing of any fact which, if existing or known at the date of this Agreement, would have been required to be set forth in this Agreement or disclosed pursuant to this Agreement. Seller shall give Buyer prompt written notice of any changes in any of the information contained in the representations and warranties made in Section 4 or elsewhere in this Agreement or the attached schedules which occurs at or prior to the Closing. No notice or disclosure provided by Seller pursuant to this Section 7.4, however, shall be deemed to amend or supplement any schedule hereto or to prevent or cure any misrepresentation, breach of warranty or breach of covenant. Notwithstanding the foregoing, if, after receiving notice or obtaining knowledge of any information under the preceding sentence, Buyer chooses to consummate the Closing, then any misrepresentation, breach of warranty or beach of covenant arising therefrom will be deemed irrevocably waived without remedy.
7.5 Notice of Litigation.
Each party shall promptly notify the other in writing if it receives any notice, or otherwise becomes aware, of any action or proceeding instituted or threatening before any court or Governmental Authority by any third party to (i) restrain or prohibit, or obtain damages in respect of this Agreement, (ii) prevent the consummation of the sale and purchase of the Purchased Assets or any other transactions contemplated by this Agreement or the Related Agreements, (iii) cause the sale and purchase of the Purchased Assets or any of the other transactions contemplated by this Agreement or the Related Agreements to be rescinded following consummation, or (iv) affect adversely the right of Buyer to own the Purchased Assets and to operate the Business (and no such injunction, judgment, order, decree, ruling or charge will be in effect).
7.6 Access to Records; Inspection.
7.7 Exclusivity.
Unless this Agreement is terminated pursuant to Section 9, Seller shall not, directly or indirectly, (i) submit, solicit, initiate, encourage or discuss any proposal or offer from any Person
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(other than Buyer in connection with the transactions contemplated hereby) or enter into any agreement or accept any offer relating to or consummate any (a) reorganization, liquidation, dissolution or recapitalization of Seller, (b) merger or consolidation involving Seller, (c) purchase or sale of any Purchased Assets or capital stock (or any rights to acquire, or securities convertible into or exchangeable for, any such capital stock) of Seller, except for sales of Inventory in the ordinary course of business consistent with past practice, or (d) similar transaction or business combination involving Seller or the Purchased Assets (each of the foregoing transactions described in clauses (a) through (d), a Company Transaction) or (ii) furnish any information with respect to, assist or participate in or facilitate in any other manner any effort or attempt by any Person (other than Buyer) to do or seek to do any of the foregoing. Seller agrees to notify Buyer immediately if any Person makes any written proposal, offer or inquiry with respect to a Company Transaction.
7.8 Litigation Support.
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8. Conditions Precedent to the Parties Obligations to Close.
8.1 Buyers Conditions Precedent.
Buyers obligations under this Agreement are subject to the satisfaction at or before the Closing Date of each of the following conditions (the fulfillment of any of which may be waived in writing by Buyer):
8.2 Sellers Conditions Precedent.
Sellers obligations under this Agreement are subject to the satisfaction at, or prior to, the Closing Date of the following conditions precedent (the fulfillment of any of which may be waived in writing by Seller):
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8.3 Mutual Condition Precedent.
Unless waived in writing by each party, it will be a further condition to the consummation of the Transactions that no litigation will have been commenced or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent the consummation of the sale and purchase of the Purchased Assets or any other transactions contemplated by this Agreement or the Related Agreements, (ii) cause the sale and purchase of the Purchased Assets or any of the other transactions contemplated by this Agreement or the Related Agreements to be rescinded following consummation, or (iii) affect adversely the right of Buyer to own the Purchased Assets and to operate the Business (and no such injunction, judgment, order, decree, ruling or charge will be in effect).
9. Termination.
This Agreement may be terminated at any time before the Closing as follows:
10. Indemnification.
10.1 Indemnification by Seller and the Shareholder.
Regardless of any investigation made at any time by or on behalf of Buyer or any information Buyer or any of its directors, officers, employees, representatives, agents, attorneys, accountants, or consultants may have, Seller and the Shareholder, jointly and severally, shall indemnify, defend and hold harmless Buyer and each of its Affiliates, shareholders, directors, officers, employees, agents, accountants, attorneys and representatives (collectively, with Buyer, the Buyer Indemnified Parties) from and against any demand, claim, action, cause of action, damage, Liability, loss, cost, debt, deficiency, expense, obligation, Tax, assessment, public charge, lawsuit, contract, agreement, and undertaking of any kind or nature, whether known or unknown, fixed, actual, accrued or contingent, liquidated or unliquidated, and whether or not asserted by a third party (including, interest, penalties, additional federal, state or local Taxes, reasonable attorneys fees and other costs and expenses incident to this transaction or
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proceedings or investigations or the defense of any claim, whether or not litigation has commenced) (Losses) arising out of, resulting from, or relating to any of the following:
10.2 Indemnification by Buyer.
Buyer shall indemnify, defend and hold harmless Seller, and each of its Affiliates, shareholders, directors, officers, employees, agents, accountants, attorneys and representatives from and against any Losses arising out of, resulting from, or relating to any of the following:
10.3 Indemnification Procedures.
In the case of any claim asserted by a third party against a party entitled to indemnification under this Agreement (the Indemnified Party), notice shall be given by the Indemnified Party to the party required to provide indemnification (the Indemnifying Party) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and the Indemnified Party shall permit the Indemnifying Party (at the expense of such Indemnifying Party) to assume the defense of any claim or any litigation resulting therefrom; provided that (i) the counsel for the Indemnifying Party who shall conduct the defense of such claim or litigation shall be reasonably satisfactory to the Indemnified Party, (ii) the Indemnified Party may participate in such defense at such Indemnified Partys expense and (iii) the omission by any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement, except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and such Indemnifying Party is prejudiced as a result of such failure to give notice. Except with the prior written consent of the Indemnified Party, no Indemnifying Party, in the defense of any such
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claim or litigation, shall consent to entry of any judgment or enter into any settlement that provides for injunctive or other non-monetary relief affecting the Indemnified Party or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnified Party of a release from all Liability with respect to such claim or litigation.
10.4 Survival of Indemnification Obligations.
The indemnities provided in this Section 10 shall survive the Closing, except that:
10.5 Limitation of Indemnification; Other Indemnification Matters.
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11. Post-Closing Transfer of Purchased Assets.
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12. Miscellaneous.
12.1 Expenses.
Except as otherwise provided in this Agreement, each party will pay its own expenses incident to the preparation and carrying out of this Agreement, any due diligence, and the Transactions, including all fees of counsel, accountants, investment bankers and other experts.
12.2 Assignment.
This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns. No party may assign its rights, privileges or obligations under this Agreement without the prior written consent of the other party, and any attempted assignment without the written consent of the other party will be void.
12.3 Notice.
Any notice or communication under this Agreement will be in writing and either delivered personally, sent by certified or registered mail, postage prepaid, delivered by a recognized overnight courier service, or transmitted via facsimile with confirmation receipt of such notice, addressed as follows:
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If to Seller: |
COMPAC CORPORATION |
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c/o TRIMAS COMPANY LLC |
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39400 Woodward Avenue, Suite 130 |
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Bloomfield Hills, Michigan 48034 |
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Attn: Joshua Sherbin |
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Fax No.: (248) 631-5502 |
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With a copy to: |
Honigman Miller Schwartz and Cohn LLP |
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2290 First National Building |
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660 Woodward Avenue |
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Detroit, Michigan 48226 |
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Attention: Donald J. Kunz |
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Fax: (313) 465-7455 |
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If to the Shareholder: |
TRIMAS COMPANY LLC |
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39400 Woodward Avenue, Suite 130 |
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Bloomfield Hills, Michigan 48034 |
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Attn: Joshua Sherbin |
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Fax No.: (248) 631-5502 |
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With a copy to: |
Honigman Miller Schwartz and Cohn LLP |
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2290 First National Building |
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660 Woodward Avenue |
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Detroit, Michigan 48226 |
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Attention: Donald J. Kunz |
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Fax: (313) 465-7455 |
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If to Buyer: |
LAMTEC Corporation |
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700 Bartley-Chester Road, P.O. Box 37 |
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Flanders, New Jersey 07836-0037 |
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Attn: Mr. John Post, President |
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With a copy to: |
McFall, Layman & Jordan, P.C. |
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134 Broadway |
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Bangor, PA 18013 |
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Attn: David J. Jordan Jr. |
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Fax No.: (610) 588-3455 |
or to such other address as may be furnished in writing by either party in the preceding manner.
12.4 Entire Agreement.
This Agreement and the confidentiality provisions set forth in the letter agreement dated June 18, 2008, between Buyer and the TriMas Corporation, a Delaware corporation (the Parent) (the Confidentiality Provisions) constitute the entire agreement between the parties with respect to the subject matter of this Agreement. The Confidentiality Provisions shall terminate and shall be of no further force or effect effective upon the Closing Date. No waiver, amendment or other modification of this Agreement will be valid unless evidenced by a writing signed by the party or parties whose rights or obligations are affected by such waiver, amendment or modification.
12.5 Press Releases and Announcements.
Except for any public disclosure which either party in good faith believes is required by applicable Laws (in which case, if practicable, the disclosing party will give the other party an opportunity to review and comment upon such disclosure before it is made):
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12.6 Interpretation.
12.7 Severability.
If any provision of this Agreement is determined to be contrary to law or unenforceable by any court of law, the provision will be reformed to provide the maximum expression of the intent of the parties permissible under law.
12.8 Counterparts and Effectiveness.
This Agreement may be executed in counterparts (each of which shall be deemed an original, but all of which take together shall constitute one and the same agreement) and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties. The exchange of copies of this Agreement and of signature pages by facsimile or electronic transmissions shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile or electronic transmission shall be deemed to be their original signatures for all purposes.
12.9 Applicable Law.
This Agreement will be construed in accordance with and governed by the laws of the State of Michigan without giving effect to principles of conflicts of law. Any party bringing a legal action or proceeding against any other party arising out of or relating to this Agreement shall bring the legal action or proceeding in the United States District Court for the Eastern District of Michigan or in any court of the State of Michigan sitting in Oakland County, Michigan. Each party waives, to the fullest extent permitted by law, any objection that it may now or later have to the laying of venue of any legal action or proceeding arising out of or relating to this Agreement and any claim that any action or proceeding has been brought in an
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inconvenient forum. Each party submits and consents to the exclusive jurisdiction of such courts, along with their respective appellate courts, for the purposes of all legal actions and proceedings arising out of or relating to this Agreement.
12.10 No Third Party Beneficiary.
This Agreement is for the sole benefit of the parties hereto, and nothing herein expressed or implied shall give or be construed to give any Person other then the parties hereto any legal or equitable rights hereunder.
The parties have executed this Asset Purchase Agreement as of the date first written above.
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BUYER |
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LAMTEC CORPORATION |
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By: |
s/s John Post |
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Name: |
John Post |
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Its: President |
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SELLER |
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COMPAC CORPORATION |
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By: |
/s/ Joshua A. Sherbin |
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Name: |
Joshua A. Sherbin |
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Its: Secretary |
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SHAREHOLDER |
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TRIMAS COMPANY LLC |
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By: |
/s/ Grant H. Beard |
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Name: |
Grant H. Beard, |
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Its: President and CEO of TriMas |
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Corporation, its sole member |
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Exhibit 99.1
FOR IMMEDIATE RELEASE |
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CONTACT: |
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Sherry Lauderback |
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Vice President, Investor Relations & |
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Communications |
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(248) 631-5506 |
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sherrylauderback@trimascorp.com |
BLOOMFIELD HILLS, Michigan, February 13, 2009 TriMas Corporation (NYSE: TRS) a diversified growth company of specialty niche businesses today announced that it closed its transaction to sell certain assets of its subsidiary, Compac Corporation, and completed the annual renewal of its receivables securitization facility.
The previously announced transaction to sell certain assets of Compac Corporation to LAMTEC Corporation closed on February 9, 2009. The Company received approximately $21 million in cash at closing. Compac, a manufacturer of flame-retardant facings, jacketings, insulation tapes and other specialty tape products, was part of the Companys Packaging Systems business segment.
In addition, the Company completed the annual renewal of its receivables securitization facility. The new facility, which has a customary 364-day term, provides committed funding of up to $55 million, consistent with the anticipated level of receivables and future liquidity needs over the term of the facility. The new facility provides a source of liquidity for the Company at a cost of funds equal to a commercial paper-based rate (currently approximately 0.7%) plus a spread of 4.5% on amounts drawn under the facility.
Cautionary Notice Regarding Forward-looking Statements
Statements in this release that are not strictly historical, including the statements regarding expectations for the balance of 2008 and any other statements regarding events or developments that we believe or anticipate will or may occur in the future, may be forward-looking statements. These statements present managements expectations, beliefs, plans and objectives regarding future financial performance, and assumptions or judgments concerning such performance. Any discussions contained in this press release, except to the extent that they contain historical facts, are forward-looking and accordingly involve estimates, assumptions, judgments and uncertainties. There are a number of factors that could cause actual results or outcomes to differ materially from those addressed in the forward-looking statements. Additional information regarding the factors that may cause actual results to differ materially from these forward-looking statements is available in our SEC filings, including our 2007 Annual Report on Form 10-K. We assume no obligation to update any forward-looking statements as a result of new information or future events or developments.
About TriMas
Headquartered in Bloomfield Hills, Michigan, TriMas Corporation (NYSE: TRS) is a diversified growth company of specialty niche businesses manufacturing a variety of highly engineered products for commercial, industrial and consumer markets worldwide. TriMas Corporation is organized into five strategic business segments: Packaging Systems, Energy Products, Industrial Specialties, RV & Trailer Products, and Recreational Accessories. TriMas Corporation has nearly
5,000 employees at 70 different facilities in 10 countries. For additional information, please visit www.trimascorp.com.
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