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EXHIBIT 10.7
EXECUTION COPY
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AMENDED AND RESTATED
RECEIVABLES LOAN AGREEMENT
by and among
TRW AUTOMOTIVE GLOBAL RECEIVABLES LLC
as Borrower
The Persons Parties hereto as
Conduit Lenders and Committed Lenders
CREDIT SUISSE FIRST BOSTON
JPMORGAN CHASE BANK, N.A.
THE BANK OF NOVA SCOTIA
SUNTRUST CAPITAL MARKETS, INC. and
DRESDNER BANK AG, NEW YORK BRANCH
as Funding Agents
and
JPMORGAN CHASE BANK, N.A.
as Administrative Agent
Dated as of December 31, 2004
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS...........................................................................................
1
SECTION 1.01 Certain Defined
Terms.....................................................................
1
SECTION 1.02 Other
Terms...............................................................................
34
SECTION 1.03 Amendment and
Restatement.................................................................
35
ARTICLE II AMOUNTS AND TERMS OF THE
LOANS.......................................................................
35
SECTION 2.01 The
Loans.................................................................................
35
SECTION 2.02 Borrowing
Procedures......................................................................
36
SECTION 2.03 Use of
Proceeds...........................................................................
38
SECTION 2.04 Interest and
Fees.........................................................................
38
SECTION 2.05 Payment and Prepayment of
Loans...........................................................
39
SECTION 2.06 Application of Collections Prior to Termination
Date...................................... 39
SECTION 2.07 Application of Collections After Termination
Date......................................... 41
SECTION 2.08 Deemed Collections; Application of
Payments.............................................. 42
SECTION 2.09 Payments and Computations,
Etc............................................................
43
SECTION 2.10
Tranches..................................................................................
44
SECTION 2.11 Breakage
Costs............................................................................
45
SECTION 2.12
Illegality................................................................................
45
SECTION 2.13 Inability to Determine Eurodollar
Rate.................................................... 45
SECTION 2.14 Indemnity for Reserves and
Expenses.......................................................
46
SECTION 2.15 Indemnity for
Taxes.......................................................................
47
SECTION 2.16 Security
Interest.........................................................................
48
SECTION 2.17
[Reserved]................................................................................
49
SECTION 2.18
[Reserved]................................................................................
49
SECTION 2.19 Mitigation Obligations; Replacement of
Lenders............................................ 49
ARTICLE III CONDITIONS OF
BORROWINGS............................................................................
50
SECTION 3.01 Conditions Precedent to Effective
Date.................................................... 50
SECTION 3.02 Conditions Precedent to All
Borrowings....................................................
50
ARTICLE IV REPRESENTATIONS AND
WARRANTIES.......................................................................
51
SECTION 4.01 Representations and Warranties of the
Borrower............................................ 51
ARTICLE V
COVENANTS.............................................................................................
55
SECTION 5.01 Covenants of the
Borrower.................................................................
55
SECTION 5.02 Inspections; Annual Agreed Upon Procedures
Audit......................................... 63
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ARTICLE VI ADMINISTRATION AND COLLECTION OF
RECEIVABLES.........................................................
64
SECTION 6.01 Designation of Collection
Agent...........................................................
64
SECTION 6.02 Certain Rights of the Administrative
Agent................................................ 64
SECTION 6.03 Performance of
Obligations................................................................
66
ARTICLE VII TERMINATION
EVENTS..................................................................................
66
SECTION 7.01 Termination
Events........................................................................
66
SECTION 7.02 Acceleration of
Maturity..................................................................
68
ARTICLE VIII THE ADMINISTRATIVE
AGENT...........................................................................
69
SECTION 8.01 Authorization and
Action..................................................................
69
SECTION 8.02 Agent's Reliance,
Etc.....................................................................
69
SECTION 8.03 JPMorgan Chase and
Affiliates.............................................................
69
SECTION 8.04 Indemnification of Administrative
Agent................................................... 70
SECTION 8.05 Delegation of
Duties......................................................................
70
SECTION 8.06 Action or Inaction by Administrative
Agent................................................ 70
SECTION 8.07 Notice of Termination Events; Action by
Administrative Agent.............................. 70
SECTION 8.08 Non-Reliance on Administrative Agent and Other
Parties.................................... 71
SECTION 8.09 Successor Administrative
Agent............................................................
71
SECTION 8.10 Consent to Agreed-Upon
Procedures.........................................................
72
ARTICLE IX THE FUNDING
AGENTS...................................................................................
72
SECTION 9.01 Authorization and
Action..................................................................
72
SECTION 9.02 Funding Agent's Reliance,
Etc.............................................................
72
SECTION 9.03 Funding Agent and
Affiliates..............................................................
73
SECTION 9.04 Indemnification of Funding
Agents.........................................................
73
SECTION 9.05 Delegation of
Duties......................................................................
73
SECTION 9.06 Action or Inaction by Funding
Agent....................................................... 73
SECTION 9.07 Notice of Events of
Termination...........................................................
74
SECTION 9.08 Non-Reliance on Funding Agent and Other
Parties........................................... 74
SECTION 9.09 Successor Funding
Agent...................................................................
75
SECTION 9.10 Reliance on Funding
Agent.................................................................
75
ARTICLE X
INDEMNIFICATION.......................................................................................
75
SECTION 10.01 Indemnities by the
Borrower..............................................................
75
ARTICLE XI
MISCELLANEOUS........................................................................................
77
SECTION 11.01 Amendments,
Etc..........................................................................
77
SECTION 11.02 Notices,
Etc.............................................................................
78
SECTION 11.03
Assignability............................................................................
79
SECTION 11.04 Costs and
Expenses.......................................................................
83
SECTION 11.05 No
Proceedings...........................................................................
83
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SECTION 11.06
Confidentiality..........................................................................
83
SECTION 11.07 Further
Assurances.......................................................................
85
SECTION 11.08 GOVERNING
LAW............................................................................
85
SECTION 11.09 Execution in
Counterparts................................................................
85
SECTION 11.10 Integration; Binding Effect; Survival of
Termination..................................... 85
SECTION 11.11 Consent to
Jurisdiction..................................................................
86
SECTION 11.12 WAIVER OF JURY
TRIAL.....................................................................
86
SECTION 11.13 Right of
Setoff..........................................................................
86
SECTION 11.14 Ratable
Payments.........................................................................
87
SECTION 11.15 Limitation of
Liability..................................................................
87
SECTION 11.16 Limitation on the Addition and Termination of
Originators................................ 88
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SCHEDULES AND EXHIBITS
SCHEDULE I Lender Groups
SCHEDULE II Special Concentration Limits
SCHEDULE III Credit and Collection Policy
SCHEDULE IV Condition Precedent Documents
SCHEDULE V Collection Accounts and Concentration Account
SCHEDULE VI Fiscal Months
SCHEDULE VII Originators
SCHEDULE VIII Litigation
EXHIBIT A Form of Assignment and Acceptance
EXHIBIT B Form of Borrowing Request
EXHIBIT C-1 Form of Control Agreement (Lock-Boxes)
EXHIBIT C-2 Form of Control Agreement (Concentration
Account)
EXHIBIT D Form of Credit Default Swap
EXHIBIT E Agreed Upon Procedures
EXHIBIT F [Reserved]
EXHIBIT G Form of Note
EXHIBIT H Form of Joinder Agreement
EXHIBIT I Form of Prepayment Notice
iv
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AMENDED AND RESTATED
RECEIVABLES LOAN AGREEMENT
Dated as of December 31, 2004
AMENDED AND RESTATED RECEIVABLES LOAN AGREEMENT (as amended,
supplemented or otherwise modified and in effect from time to
time, this
"Agreement"), dated as of December 31, 2004, by and among (i)
TRW AUTOMOTIVE
GLOBAL RECEIVABLES LLC, a Delaware limited liability company, as
Borrower, (ii)
the Conduit Lenders from time to time parties hereto, (iii) the
Committed
Lenders from time to time parties hereto, (iv) JPMORGAN CHASE
BANK, N.A., CREDIT
SUISSE FIRST BOSTON, THE BANK OF NOVA SCOTIA, SUNTRUST CAPITAL
MARKETS, INC. and
DRESDNER BANK AG, NEW YORK BRANCH, as Funding Agents and (v)
JPMORGAN CHASE
BANK, N.A., as Administrative Agent.
PRELIMINARY STATEMENTS
A. The Transferor has purchased, and may from time to time
hereafter
purchase, Receivables from the Originators pursuant to the
Originator Purchase
Agreement.
B. Pursuant to the Transfer Agreement, the Borrower has
purchased, and
shall from time to time hereafter purchase, from the Transferor
all Receivables
sold to the Transferor under the Originator Purchase
Agreement.
C. To fund its purchases under the Transfer Agreement, the
Borrower may from time to time request Loans from the Lenders on
the terms and
conditions of this Agreement.
D. The Conduit Lenders may, in their sole discretion, make Loans
so
requested from time to time, and if a Conduit Lender in any
Lender Group elects
not to make any such Loan, the Committed Lenders in such Lender
Group have
agreed that they shall make such Loan, in each case subject to
the terms and
conditions of this Agreement.
E. The Borrower, the Lenders, the Funding Agents and the
Administrative
Agent are parties to a Receivable Loan Agreement dated as of
February 27, 2003
(as amended prior to the date hereof, the "Existing Loan
Agreement").
F. On the terms and conditions set forth herein, the parties
hereto
have agreed to amend and restate the Existing Loan Agreement in
its entirety.
Accordingly, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain Defined Terms. As used in this Agreement,
the
following terms shall have the following meanings (such meanings
to be equally
applicable to both the singular and plural forms of the terms
defined):
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"Accountants' Letter" has the meaning specified in Section
5.02(b).
"Adjusted Eurodollar Rate" means, for any Tranche Period, an
interest rate per annum obtained by dividing (i) the Eurodollar
Rate for such
Tranche Period by (ii) a percentage equal to 100% minus the
Eurodollar Rate
Reserve Percentage for such Tranche Period.
"Administrative Agent" means JPMorgan Chase, in its capacity
as
contractual representative for the Conduit Lenders and Committed
Lenders
hereunder, and any successor thereto in such capacity appointed
pursuant to
Article VIII.
"Administrative Agent Fee Letter" has the meaning specified
in
Section 2.04(c).
"Adverse Claim" means a lien, security interest or other charge
or
encumbrance, or other right or claim in, of or on any asset or
property of a
Person in favor of another Person.
"Affiliate" means, when used with respect to a specified
Person,
another Person that directly, or indirectly through one or more
intermediaries,
Controls or is Controlled by or is under common Control with the
Person
specified.
"Agents" means, collectively, the Administrative Agent and
each
Funding Agent.
"Aggregate Commitment" means, at any time, the sum of the
Commitments then in effect. The initial Aggregate Commitment as
of the Amendment
Effective Date shall be equal to $408,000,000 as set forth on
Schedule I.
"Aggregate Principal Balance" means the aggregate
outstanding
Principal Balance of the Loans hereunder.
"Agreement" has the meaning specified in the preamble
hereto.
"Alternate Rate" for any Tranche during any Tranche Period means
an
interest rate per annum equal to the sum of the Applicable
Eurodollar Rate
Margin plus the Adjusted Eurodollar Rate for such Tranche
Period; provided,
however, that in case of:
(i) any Tranche Period with respect to which the Adjusted
Eurodollar Rate is not available pursuant to Section 2.12 or
2.13,
(ii) any Tranche Period of less than one month,
(iii) any Tranche Period as to which the applicable Funding
Agent does not receive notice, by no later than 1:00 P.M. (New
York
City time) on the third Business Day preceding the first day of
such
Tranche Period, that the related Tranche will not be funded by
a
Conduit Lender through the issuance of Commercial Paper, or
(iv) any Tranche Period for a Tranche the Principal Balance
of
which is less than $1,000,000 for any Lender Group,
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the Alternate Rate for such Tranche Period shall be an interest
rate per annum
equal to the Base Rate in effect from time to time during such
Tranche Period.
"Amendment Effective Date" has the meaning specified in
Section
1.03.
"Applicable ABR Margin" has the meaning specified in the Lender
Fee
Letter.
"Applicable Eurodollar Rate Margin" has the meaning specified in
the
Lender Fee Letter.
"Asset Purchase Agreement" means, in the case of any Lender
Group, a
secondary market agreement, asset purchase agreement or other
liquidity
agreement entered into by the Committed Lenders in such Lender
Group or any of
their respective Affiliates for the benefit of one or more
Conduit Lenders in
such Lender Group, to the extent relating to the sale or
transfer of interests
in, or other financing of, Loans.
"Assignment and Acceptance" means an assignment and
acceptance
agreement entered into by a Committed Lender, an Eligible
Assignee and such
Committed Lender's Funding Agent, pursuant to which such
Eligible Assignee may
become a party to this Agreement, in substantially the form of
Exhibit A hereto.
"Base Rate" means, with respect to any Tranche, a
fluctuating
interest rate per annum as shall be in effect from time to time,
which
rate shall at all times be equal to the sum of (a) the
Applicable ABR
Margin plus (b) the higher of: (A) the rate of interest
announced publicly
by JPMorgan Chase in New York, New York, from time to time as
JPMorgan
Chase's prime or base rate (such rate not necessarily being the
lowest or
best rate charged by JPMorgan Chase); and (B) the Federal Funds
Rate plus
0.50%.
"Base Rate Tranche" has the meaning specified in Section
2.12.
"Borrower" means TRW Automotive Global Receivables LLC, a
Delaware
limited liability company, and any successor thereto.
"Borrower Obligations" means all present and future indebtedness
and
other liabilities and obligations (howsoever created, arising or
evidenced,
whether direct or indirect, absolute or contingent, or due or to
become due) of
the Borrower to the Secured Parties arising under or in
connection with this
Agreement or any other Transaction Document or the transactions
contemplated
hereby or thereby, and shall include, without limitation, the
aggregate
Principal Balance of the Loans, Interest, Fees, Credit Default
Swap Obligations,
and all other amounts due or to become due from the Borrower
under the
Transaction Documents (whether in respect of fees, expenses,
indemnifications,
breakage costs, increased costs or otherwise), including,
without limitation,
interest, fees and other obligations that accrue after the
commencement of any
bankruptcy, insolvency or similar proceeding with respect to any
Transaction
Party (in each case whether or not allowed as a claim in such
proceeding).
"Borrowing" has the meaning specified in Section 2.01(a).
"Borrowing Date" has the meaning specified in Section
2.02(a)(i).
3
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"Borrowing Request" has the meaning specified in Section
2.02(a)(i).
"Business Day" means any day on which (i) banks are not
authorized
or required to close in New York City, New York, (ii) so long as
the Collection
Agent is TRW Automotive U.S. LLC or an Affiliate thereof, the
Collection Agent
is open for business in Livonia, Michigan and (iii) if this
definition of
"Business Day" is utilized in connection with the determination
of the
Eurodollar Rate or any notice related thereto, dealings are
carried out in the
London interbank market.
"Calculation Period" means each period from and including the
first
day of a fiscal month specified on Schedule VI to and including
the last day of
such fiscal month (whether such fiscal month occurs before or
after the Closing
Date).
"Capitalized Lease Obligation" of any Person means the
obligations
of such Person to pay rent or other amounts under any lease of
(or other
arrangement conveying the right to use) real or personal
property, or a
combination thereof, which obligations are required to be
classified and
accounted for as capital leases on a balance sheet of such
Person under GAAP
and, for purposes hereof, the amount of such obligations at any
time shall be
the capitalized amount thereof at such time determined in
accordance with GAAP.
"Carrying Cost Reserve" means, on any date, an amount equal
to
(NRB x CCRR)
where:
NRB = the Net Receivables Balance at the close of business of
the
Collection Agent on such date.
CCRR = the Carrying Cost Reserve Ratio on such date.
"Carrying Cost Reserve Ratio" means, on any Monthly Reporting
Date
and continuing until (but not including) the next Monthly
Reporting Date, an
amount, expressed as a percentage, equal to (a) the product of
(i) 2 times Days
Sales Outstanding for such earlier Monthly Reporting Date and
(ii) the Base Rate
in effect for Dollars as of such day, divided by (b) 365 (or
366, as
applicable).
"Change in Law" means (a) the adoption of any Law after the date
of
this Agreement, (b) any change in Law or in the interpretation
or application
thereof by any Official Body after the date of this Agreement or
(c) compliance
by any Indemnified Party (or, for purposes of Section 2.14(b),
by any lending
office of such Indemnified Party or by such Indemnified Party's
holding company,
if any) with any request, guideline or directive (whether or not
having the
force of law) of any Official Body made or issued after the date
of this
Agreement.
"Change of Control" means the occurrence of any of the
following:
4
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(a) at any time, (i) Holdings shall fail to own directly,
beneficially and of record, 100% of the issued and outstanding
Equity Interests
of Intermediate Holdings (or the surviving entity in any merger
of Intermediate
Holdings and the Parent Guarantor pursuant to Section 6.05(b) of
the Senior
Credit Agreement), unless and until such time as Intermediate
Holdings (or such
surviving entity) is merged with Holdings pursuant to Section
6.05(b) of the
Senior Credit Agreement, (ii) Intermediate Holdings (or the
surviving entity in
any merger of Intermediate Holdings and Holdings pursuant to
Section 6.05(b) of
the Senior Credit Agreement) shall fail to own directly,
beneficially and of
record, 100% of the issued and outstanding Equity Interests of
the Parent
Guarantor, unless and until such time as Intermediate Holdings
(or such
surviving entity) is merged with the Parent Guarantor pursuant
to Section
6.05(b) of the Senior Credit Agreement, (iii) a majority of the
seats (other
than vacant seats) on the board of directors of Holdings shall
at any time be
occupied by persons who were neither (A) nominated by the board
of directors of
Holdings or a Permitted Holder nor (B) appointed by directors so
nominated or
(iv) a "Change in Control" shall occur under (and as defined in)
the Senior
Notes Indentures or the Senior Subordinated Note Indentures;
(b) any person or group (within the meaning of Rule 13d-5 of
the
Securities Exchange Act of 1934 as in effect on the date
hereof), other than the
Permitted Holders or any combination of the Permitted Holders,
shall own
beneficially, directly or indirectly, in the aggregate Equity
Interests
representing at least 35% of the aggregate ordinary voting power
represented by
the issued and outstanding Equity Interests of Holdings and the
Permitted
Holders own beneficially, directly or indirectly, a smaller
percentage of such
ordinary voting power at such time than the Equity Interests
owned by such other
person or group;
(c) the Parent Guarantor shall cease to own, directly or
indirectly,
100% of the outstanding Equity Interests in each of the Borrower
and the
Transferor; or
(d) any Originator or the Collection Agent shall cease to be
a
wholly-owned direct or indirect Subsidiary of the Parent
Guarantor unless, in
the case of an Originator, in the judgment of each Funding
Agent, the failure of
such Originator to be a wholly-owned direct or indirect
Subsidiary of the Parent
Guarantor would not materially and adversely affect the
collectibility of any
material portion of the Receivables or the performance of such
Originator's
obligations under the Transaction Documents.
"Closing Date" means February 28, 2003.
"Collateral" has the meaning specified in Section 2.16.
"Collateral Account" has the meaning specified in Section 2.8 of
the
Servicing Agreement.
"Collateral Account Bank" means any bank at which a
Collateral
Account is maintained.
"Collateral Agreement" has the meaning specified in Section
2.16(c).
5
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"Collection Account" means an account maintained at an
Eligible
Account Bank or a post office box administered by an Eligible
Account Bank
(other than the Concentration Account or the Collateral
Account), in each case
for the purpose of receiving Collections.
"Collection Account Bank" means any bank at which a
Collection
Account is maintained.
"Collection Agent" means at any time the Person then
authorized
pursuant to Section 2.1 of the Servicing Agreement to administer
and collect
Receivables.
"Collection Agent Default" has the meaning specified in Section
2.9
of the Servicing Agreement.
"Collection Agent Parties" means, collectively, the Collection
Agent
and the Sub-Collection Agents.
"Collections" means, collectively (without duplication), (i)
all
cash collections and other cash Proceeds of the Pool
Receivables, including,
without limitation, all cash Proceeds of Related Security with
respect to any
such Receivable, any Deemed Collections of such Receivables and
any payments
made by any Originator with respect to such Receivables
(including any payments
made with respect to a Diluted Receivable or in connection with
the repurchase
of a Receivable pursuant to the terms of the Originator Purchase
Agreement),
(ii) all cash collections and other cash Proceeds of the Credit
Default Swaps,
including, without limitation, all cash Proceeds of any
collateral securing the
obligations of the counterparty thereunder and (iii) all other
cash collections
and other cash Proceeds of the Collateral.
"Commercial Paper" means commercial paper, money market notes
and
other promissory notes and senior indebtedness issued by a
Conduit Lender.
"Commitment" of any Committed Lender means the Dollar amount
set
forth on Schedule I hereto opposite such Committed Lender's name
or, in the case
of a Committed Lender that became a party to this Agreement
pursuant to an
Assignment and Acceptance, the amount set forth therein as such
Committed
Lender's Commitment, in each case as such amount may be (i)
reduced or increased
by any Assignment and Acceptance entered into by such Committed
Lender in
accordance with the terms hereof and (ii) reduced pursuant to
Section 2.01(c).
"Committed Lenders" means, collectively, the Persons identified
as
"Committed Lenders" on Schedule I and their respective
successors and permitted
assigns.
"Concentration Account" has the meaning specified in Section 2.7
of
the Servicing Agreement.
"Concentration Account Bank" means, at any time, any
Eligible
Account Bank at which the Concentration Account is maintained at
such time.
6
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"Concentration Factor" means, as of any date of determination,
(x)
with respect to any Obligor that is a Special Obligor, the
Special Concentration
Factor for such Special Obligor and (y) with respect to any
other Obligor, a
percentage equal to the following:
(a) if such Obligor has (i) a short-term debt rating of at least
A-1
by S&P or, if no short-term debt rating from S&P is
available, a Debt Rating of
at least A by S&P and (ii) a short-term debt rating of P-1
by Moody's or, if no
short-term debt rating from Moody's is available, a Debt Rating
of at least A2
by Moody's, 20.0%;
(b) if such Obligor is not qualified under clause (a) above, but
has
(i) a short-term debt rating of at least A-2 by S&P or, if
no short-term debt
rating from S&P is available, a Debt Rating of at least BBB+
by S&P and (ii) a
short-term debt rating of at least P-2 by Moody's or, if no
short-term debt
rating from Moody's is available, a Debt Rating of at least Baa1
by Moody's,
20.0%;
(c) if such Obligor is not qualified under clauses (a) or (b)
above,
but such Obligor has (i) a short-term debt rating of at least
A-3 by S&P or, if
no short-term debt rating from S&P is available, a Debt
Rating of at least BBB-
by S&P and (ii) a short-term debt rating of at least P-3 by
Moody's or, if no
short-term debt rating from Moody's is available, a Debt Rating
of at least Baa3
by Moody's, 12.5%; and
(d) in all other cases, 5.0%.
In the event the ratings of any Obligor from S&P and Moody's
fall
within different ratings levels, the Concentration Factor for
such Obligor shall
be determined based upon the lower of the two ratings.
"Concentration Limit" for any Obligor at any time means:
(i) in the case of a Special Obligor, the product of the
Special
Concentration Factor for such Obligor and its Affiliates
multiplied by the
aggregate Outstanding Balance of the Eligible Receivables or, if
less, the
maximum Concentration Limit for such Obligor specified on
Schedule II (as such
Schedule amended from time to time as described in the
definition of "Special
Obligor"); and
(ii) in the case of any other Obligor, the product of the
Concentration Factor for such Obligor and its Affiliates
multiplied by the
aggregate Outstanding Balance of the Eligible Receivables.
"Conduit Assignee" means, with respect to any assignment by
a
Conduit Lender, any Person that (i) issues commercial paper,
money market notes,
promissory notes or other senior indebtedness rated at least A-1
by S&P and P-1
by Moody's, (ii) is managed or administered by the Funding Agent
or the Program
Manager with respect to such assigning Conduit Lender or any
Affiliate of such
Funding Agent or Program Manager or an Eligible Assignee or any
Affiliate
thereof and (iii) is designated by such Funding Agent or Program
Manager to
accept an assignment from such Conduit Lender of such Conduit
Lender's rights
and obligations pursuant to Section 11.03(b).
7
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"Conduit Borrower" means an entity which is designated as a
Conduit
Borrower on Schedule I hereto, which entity will fund its Loans
hereunder by
borrowing from a specified financing conduit.
"Conduit Lender Termination Date" means, with respect to any
Conduit
Lender, the date on which the Funding Agent for such Conduit
Lender notifies the
Administrative Agent and the Borrower that no further Loans
shall be made by
such Conduit Lender hereunder.
"Conduit Lenders" means, collectively, the Persons identified
as
"Conduit Lenders" on Schedule I and their respective successors
and permitted
assigns; provided, however, that when used in reference to any
such Person that
is also a Conduit Borrower, the term "Conduit Lender" shall be
deemed to refer
collectively to such Conduit Borrower and its related financing
conduit.
"Conduit Lending Limit" of any Conduit Lender means the
Dollar
amount set forth on Schedule I hereto opposite such Conduit
Lender's name, as
such amount may be reduced or increased pursuant to Section
2.01(c) or Section
11.03(b). The aggregate Conduit Lending Limits as of the
Amendment Effective
Date shall be equal to $400,000,000, as set forth on Schedule
I.
"Contract" means an agreement (including, without limitation,
an
agreement evidenced by a purchase order, invoice or similar
document), pursuant
to or under which an Obligor shall be obligated to pay for goods
or merchandise
purchased from an Originator or services rendered by an
Originator.
"Control" means the possession, directly or indirectly, of the
power
to (i) direct or cause the direction of the management or
policies of a Person,
whether through the ownership of voting securities, by contract
or otherwise or
(ii) solely when used in reference to an Obligor, vote 25% or
more of the
securities having ordinary voting power for the election of
directors (or the
equivalent) of such Person, and "Controlling" and "Controlled"
have meanings
correlative thereto.
"Control Agreement" means (i) with respect to a Collection
Account,
an agreement among an Originator, the Collection Agent, the
Borrower, the
Administrative Agent and the applicable Collection Account Bank
in substantially
the form of Exhibit C-1 to this Agreement or in the form
specified in the
Originator Purchase Agreement (or such other form as the
Administrative Agent
shall approve) and (ii) with respect to the Concentration
Account, an agreement
among the Collection Agent, the Borrower, the Administrative
Agent and the
Concentration Account Bank in substantially the form of Exhibit
C-2 to this
Agreement (or in such other form as the Administrative Agent
shall approve).
"CP Rate" means, for any Tranche Period for any Tranche, and for
any
Conduit Lender, to the extent such Lender funds such Tranche by
issuing
Commercial Paper, the per annum rate equivalent to the weighted
average cost (as
determined by the related Funding Agent, and which shall include
(without
duplication) the fees and commissions of placement agents and
dealers,
incremental carrying costs incurred with respect to Commercial
Paper maturing on
dates other than those on which corresponding funds are received
by such Conduit
Lender, other
8
<PAGE>
borrowings by such Conduit Lender and any other costs associated
with the
issuance of Commercial Paper) of or related to the issuance of
Commercial Paper
that are allocated, in whole or in part, by such Conduit Lender
or its related
Funding Agent to fund or maintain such Tranche (and which may
also be allocated
in part to the funding of other assets of the Conduit Lender);
provided,
however, that if any component of any such rate is a discount
rate, in
calculating the "CP Rate" for such Tranche for such Tranche
Period, the related
Funding Agent shall for such component use the rate resulting
from converting
such discount rate to an interest bearing equivalent rate per
annum.
"Credit and Collection Policy" means those receivables credit
and
collection policies and practices of the Originators in effect
on the date of
this Agreement and described in Schedule III hereto, as modified
in compliance
with this Agreement.
"Credit Default Premium Reserve Account" has the meaning
specified
in the Transfer Agreement.
"Credit Default Swap" means a credit default swap
transaction
entered into by the Transferor (and pledged to the Borrower in
accordance with
the Transfer Agreement), pursuant to which the Transferor
obtains credit
protection on an Obligor for the purpose of increasing the
Concentration Limit
for such Obligor; provided that (i) at the time such transaction
is entered
into, the Hedge Counterparty thereunder is an Eligible
Counterparty, (ii) the
Transferor shall have no payment obligations under such
transaction other than
the payment of up-front and periodic premiums to the Eligible
Counterparty (and
either (A) all premiums payable during the next six months of
such Credit
Default Swap shall have been duly paid in full in advance or (B)
the amount of
such premiums shall have been deposited into the Credit Default
Premium Reserve
Account in accordance with the Transfer Agreement), (iii) the
"Credit Events"
under such transaction shall include "Bankruptcy" and "Failure
to Pay", (iv)
such transaction shall provide for "Cash Settlement" in Dollars
only and (v) the
documentation governing such credit default swap transaction
shall be
substantially in the form attached as Exhibit D (or in such
other form as the
Required Committed Lenders (and, solely in the case of Credit
Default Swaps
entered into on the Closing Date, each Funding Agent) may
approve in their
reasonable discretion; provided that if the only material
differences between
the documentation set forth in Exhibit D and the documentation
proposed to be
used for such credit default swap transaction arise out of
changes to the
standard form credit default swap documentation published by the
International
Swap and Derivatives Association, Inc. (or any successor
thereto), then the
Transferor may use such proposed documentation without the
consent of any party
other than the Administrative Agent.
"Credit Default Swap Obligation" means any amount payable by
the
Transferor to a Hedge Counterparty under a Credit Default
Swap.
"Daily Report" means a report furnished by the Collection
Agent
pursuant to Section 2.3(c) of the Servicing Agreement in
substantially the form
attached as Exhibit A-3 to the Servicing Agreement.
"Days Sales Outstanding" means, on any Monthly Reporting Date
and
continuing until (but not including) the next Monthly Reporting
Date, the number
of calendar days equal to
9
<PAGE>
the product of (a) 91 and (b) the amount obtained by dividing
(i) the aggregate
Outstanding Balance of Receivables as of the last day of the
immediately
preceding Calculation Period by (ii) the aggregate amount of
sales giving rise
to Receivables during the three (3) consecutive Calculation
Periods immediately
preceding such Monthly Reporting Date.
"Debt Rating" for any Person at any time means the
then-current
rating by S&P or Moody's of such Person's long-term public
senior unsecured or,
in the case of the Parent Guarantor, senior secured
non-credit-enhanced debt.
"Deemed Collections" means any Collections on any Receivable
deemed
to have been received by the Transferor pursuant to the Transfer
Agreement or by
the Borrower pursuant to Sections 2.08(c) and (d).
"Default Ratio" means the ratio (expressed as a percentage)
computed
as of each Monthly Reporting Date for the immediately preceding
Calculation
Period by dividing (i) the sum (without duplication) of the
aggregate
Outstanding Balance of all Receivables which were 91-120 days
past their
original due date as at the end of such Calculation Period plus
the Outstanding
Balance of all Receivables which became Defaulted Receivables
during such
Calculation Period by (ii) the aggregate amount of sales giving
rise to
Receivables during the fourth Calculation Period immediately
prior to such
Calculation Period. To the extent adequate data for Calculation
Periods prior to
December 2002 are not available for any Originator to determine
the aggregate
Outstanding Balance of Receivables which were 91-120 days past
their original
due date as at the end of such Calculation Period, the
Collection Agent may use
for such calculation the aggregate Outstanding Balance of
Receivables originated
by such Originator which were 61-90 days past due or , if
adequate data is also
not available for Receivables that were 61-90 days past due,
then the Collection
Agent may use for such calculation the aggregate Outstanding
Balance of
Receivables originated by such Originator which were 31-60 days
past due as at
the end of such Calculation Period.
"Defaulted Receivable" means a Receivable: (i) which remains
unpaid
for 91 or more days from the original due date for such
Receivable; (ii) as to
which an Event of Bankruptcy has occurred and is continuing with
respect to the
Obligor thereof; (iii) which has been identified by the
Borrower, any
Originator, the Transferor or the Collection Agent as
uncollectible; or (iv)
which, in accordance with the applicable Credit and Collection
Policy, has been
or should be written off as uncollectible.
"Defaulting Lender" means any Committed Lender with respect to
which
a Lender Default is in effect.
"Delinquency Ratio" means the ratio (expressed as a
percentage)
computed as of each Monthly Reporting Date for the immediately
preceding
Calculation Period by dividing (i) the aggregate Outstanding
Balance of all
Receivables which remain unpaid more than 60 days from their
original due date
as of the end of such Calculation Period by (ii) the aggregate
Outstanding
Balance of all Receivables as of the end of such Calculation
Period.
"Delinquent Receivable" means a Receivable which remains
unpaid
between 61 and 90 days from the original due date.
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<PAGE>
"Designated Obligor" means any Obligor designated as such by
the
Borrower with the prior written consent of the Required
Committed Lenders.
"Diluted Receivable" means that portion (and only that portion)
of
any Receivable which is either (a) reduced or canceled as a
result of (i) any
defective, rejected or returned goods, merchandise or services
or any failure by
any Transaction Party to deliver any merchandise or goods or
provide any
services or otherwise to perform under any related Contract,
order or invoice,
(ii) any change in the terms of, or cancellation of, a Contract
or invoice or
any rebate, administrative fee, discount, credit memo, refund,
non-cash payment,
chargeback, allowance or any billing or other adjustment by any
Transaction
Party (except (x) any such change or cancellation in accordance
with the Credit
and Collection Policy resulting from the financial inability of
the Obligor to
pay such Receivable or (y) after the Retro Pricing Approval
Date, any Retro
Pricing Adjustment) or (iii) any set-off by an Obligor in
respect of any claim
by such Obligor (whether such claim arises out of the same or a
related
transaction or an unrelated transaction), or (b) subject to any
specific
counterclaim or defense whatsoever (except the discharge in
bankruptcy of the
Obligor thereof).
"Dilution Adjustment" means, collectively, the adjustments,
cancellations and reductions described in the definition of
"Diluted
Receivable."
"Dilution Horizon Ratio" means, as of any Monthly Reporting Date
and
continuing until (but not including) the next Monthly Reporting
Date, a ratio
computed by dividing (i) the sum of all sales which gave rise to
Receivables
during the two Calculation Periods immediately preceding such
earlier Monthly
Reporting Date by (ii) the Net Receivables Balance as of the end
of the
Calculation Period immediately preceding such earlier Monthly
Reporting Date.
"Dilution Ratio" means the ratio (expressed as a percentage)
computed as of each Monthly Reporting Date for the immediately
preceding
Calculation Period (the "current Calculation Period") by
dividing (i) the
aggregate amount of Receivables which became Diluted Receivables
during the
current Calculation Period, by (ii) the aggregate amount of all
sales giving
rise to Receivables during the second Calculation Period
immediately preceding
the current Calculation Period.
"Dilution Reserve Floor" means, as of any Monthly Reporting
Date,
and continuing until (but not including) the next Monthly
Reporting Date, the
greater of (i) 5.0% and (ii) an amount (expressed as a
percentage) that is
calculated as follows:
DRF = AD x DHR
where:
DRF = Dilution Reserve Floor;
AD = the "Average Dilution", defined as the twelve-month
rolling average of the Dilution Ratios that occurred
during the period of twelve consecutive Calculation
Periods ending immediately prior to such earlier Monthly
Reporting Date; and
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<PAGE>
DHR = the Dilution Horizon Ratio.
"Dilution Reserve Ratio" means, as of any Monthly Reporting
Date,
and continuing until (but not including) the next Monthly
Reporting Date, an
amount (expressed as a percentage) that is calculated as
follows:
DRR = DHR x [(SF x AD) + [(DS-AD) x (DS/AD)]]
where:
DRR = Dilution Reserve Ratio;
DHR = the Dilution Horizon Ratio;
SF = the Stress Factor;
AD = the "Average Dilution", defined as the twelve-month
rolling average of the Dilution Ratios that occurred
during the period of twelve consecutive Calculation
Periods ending immediately prior to such earlier Monthly
Reporting Date; and
DS = the "Dilution Spike", defined as the highest two-month
rolling average Dilution Ratio that occurred during the
period of twelve consecutive Calculation Periods ending
immediately prior to such earlier Monthly Reporting
Date.
"Dollars" and "$" each mean the lawful currency of the United
States
of America.
"Eligible Account Bank" means (a) with respect to accounts in
the
United States, a depositary institution or trust company (which
may include the
Administrative Agent and its Affiliates) organized under the
laws of the United
States of America or any one of the States thereof or the
District of Columbia;
provided, however, that at all times (i) such depositary
institution or trust
company is a member of the Federal Deposit Insurance
Corporation, (ii) the
unsecured and uncollateralized debt obligations of such
depositary institution
or trust company are rated at least A-1 by S&P and P-1 by
Moody's and (iii) such
depositary institution or trust company has a combined capital
and surplus of at
least $100,000,000 and (b) with respect to accounts outside the
United States,
an entity authorized to accept deposits in the relevant
jurisdiction which has
unsecured and uncollateralized debt obligations rated at least
A-1 by S&P and
P-1 by Moody's and has a combined capital and surplus of at
least $100,000,000.
"Eligible Assignee" means (i) any Person that is a Funding
Agent, a
Lender, a Program Support Provider or an Affiliate thereof, (ii)
any Person
managed by a Funding Agent, a Program Manager, a Lender or an
Affiliate thereof
and rated at least A-1 by S&P and P-1 by Moody's and (iii)
any other Person that
has been approved by the Funding Agent for such Lender Group
and, so long as no
Termination Event has occurred and is continuing, that has been
approved by the
Borrower and the Parent Guarantor (such approval by the Borrower
and the Parent
Guarantor not to be unreasonably withheld or delayed); provided
that, without
the prior written consent of the Administrative Agent (such
consent not to be
unreasonably withheld or delayed) no assignment may be made by a
Lender in one
Lender Group to a Lender in another
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<PAGE>
Lender Group (the "Assignee Lender Group") if, after giving
effect thereto,
either (x) the aggregate outstanding principal balance of the
Loans held by the
members of the Assignee Lender Group would exceed 26.67% of the
Aggregate
Principal Balance or (y) the aggregate Commitments of the
Committed Lenders in
the Assignee Lender Group would exceed 26.67% of the Aggregate
Commitment.
"Eligible Counterparty" means any financial institution that (i)
has
short-term debt ratings of A-1 or better by S&P and P-1 by
Moody's, (ii) has its
obligations unconditionally guaranteed by a Person whose
short-term debt ratings
are A-1 or better by S&P and P-1 by Moody's pursuant to a
guaranty in form and
substance satisfactory to the Administrative Agent or (iii) has
otherwise been
approved by the Administrative Agent and the Required Committed
Lenders (acting
in their sole discretion and subject to such terms and
conditions, including
with respect to collateral, as the Administrative Agent and the
Required
Committed Lenders may specify).
"Eligible Obligor" means any Obligor (i) that is a resident of
the
United States, (ii) that is not an Official Body or an Affiliate
of any
Transaction Party, (iii) that is not the subject of an Event of
Bankruptcy, (iv)
that is not a Designated Obligor and (v) with respect to which
not more than 25%
of the aggregate Outstanding Balance of the Receivables owing by
such Obligor
are more than 60 days past their original due date.
"Eligible Receivable" means, at any time, any Receivable:
(a) which has been originated by an Originator and sold by
such
Originator to the Transferor pursuant to (and in accordance
with) the
Originator Purchase Agreement and by the Transferor to the
Borrower
pursuant to the Transfer Agreement, with the result that the
Borrower has
good title thereto, free and clear of all Adverse Claims (other
than
"Permitted Adverse Claims" of the type described in clauses (i)
and (ii)
of the definition of such term);
(b) the Obligor of which is an Eligible Obligor;
(c) which has been billed and, according to the Contract
related
thereto, is required to be paid in full within 120 days of the
original
billing date therefor;
(d) which is denominated and payable only in Dollars in the
United
States;
(e) which is not a Delinquent Receivable or Defaulted Receivable
at
such time;
(f) which (i) arises pursuant to a Contract with respect to
which
the applicable Originator has performed all obligations required
to be
performed by it thereunder in order to have such Receivables
become due
and payable thereunder, including, without limitation, shipment
of the
goods or merchandise and/or the performance of the services
purchased
thereunder and (ii) does not arise from a consignment sale;
(g) which (i) if purchased with proceeds of Commercial Paper,
would
constitute a "current transaction" within the meaning of Section
3(a)(3)
of the Securities
13
<PAGE>
Act of 1933, as amended, (ii) is an "eligible asset" as defined
in Rule 3a-7
under the Investment Company Act of 1940, as amended, and (iii)
represents all
or part of the sales price of merchandise, insurance or services
within the
meaning of Section 3(c)(5) of the Investment Company Act of
1940, as amended;
(h) which (i) (A) is an "account" within the meaning of Section
9-102 of
the UCC of the State of Delaware or (B) a "payment intangible"
within the
meaning of Section 9-102 of such UCC and (ii) is not evidenced
or otherwise
payable by chattel paper, a promissory note, a bill of exchange
or other
instrument (other than a check);
(i) which arises under a Contract that, together with such
Receivable, is
in full force and effect and constitutes the legal, valid and
binding obligation
of the related Obligor, enforceable against such Obligor in
accordance with its
terms and is not subject to any litigation, dispute, offset,
counterclaim or
other defense other than unexpired volume or pricing discounts
or rebates to
which the Obligor thereon may be entitled; provided that only
such portion of
such Receivable subject to any such dispute, offset,
counterclaim or defense
shall be deemed ineligible under this criterion;
(j) which, together with the Contract related thereto, does not
contravene
in any material respect any Laws applicable thereto (including,
without
limitation, Laws relating to truth in lending, fair credit
billing, fair credit
reporting, equal credit opportunity, fair debt collection
practices and
privacy);
(k) which satisfies in all material respects all requirements of
the
applicable Credit and Collection Policy;
(l) which was originated in the ordinary course of the
applicable
Originator's business;
(m) the Obligor of which has been directed to make all payments
to a
Collection Account with respect to which there is a Control
Agreement in effect;
(n) which has not been compromised, adjusted or modified for
credit
reasons (including by the extension of time for payment or the
granting of any
discounts, allowances or credits);
(o) (i) the assignment of which under the Originator Purchase
Agreement to
the Transferor, (ii) the assignment of which by the Transferor
to the Borrower
under the Transfer Agreement and (iii) the grant of a security
interest therein
under this Agreement by the Borrower to the Administrative Agent
does not (in
each case of clauses (i) through (iii)) violate, conflict with
or contravene any
applicable Laws or any contractual or other restriction,
limitation or
encumbrance and does not require the consent of or notice to the
applicable
Obligor or any other Person (other than such consents as have
been obtained and
notices that have been given);
(p) which has not been re-invoiced and has not otherwise had its
invoice
date or due date changed on the books and records of any
Transaction Party;
14
<PAGE>
(q) all of the Borrower's right, title and interest in which
(together with the Collections and Related Security related
thereto) is
subject to a first priority security interest therein perfected
under
Delaware law, in favor of the Administrative Agent, on behalf of
the
Conduit Lenders and the Committed Lenders, free and clear of all
Adverse
Claims other than "Permitted Adverse Claims" of the type
described in
clauses (i) and (ii) of the definition of such term;
(r) which is not an obligation to pay for (i) tooling or
equipment
purchased or built by an Originator for the purpose of
manufacturing
products for an Obligor or (ii) services rendered in connection
with
building tooling for the purposes of manufacturing products for
an
Obligor; and
(s) the Originator Purchase Agreement under which such
Receivable
was sold to the Transferor remains in full force and effect, and
the
Originator of such Receivable has not been terminated as a
"Seller"
thereunder.
"Equity Interests" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participation
or other
equivalents of or interests in (however designated) equity of
such Person,
including any preferred stock, any limited or general
partnership interest and
any limited liability company membership interest.
"ERISA" means the Employee Retirement Income Security Act of
1974,
as amended from time to time, and the regulations promulgated
and rulings issued
thereunder.
"ERISA Affiliate" means any trade or business (whether or
not
incorporated) that, together with Holdings, Intermediate
Holdings, TRW
Automotive or a Subsidiary thereof is treated as a single
employer under Section
414(b) or (c) of the IRC, or, solely for purposes of Section 302
of ERISA and
Section 412 of the IRC, is treated as a single employer under
Section 414 of the
IRC.
"ERISA Event" means (a) any Reportable Event; (b) the existence
with
respect to any Plan of an "accumulated funding deficiency" (as
defined in
Section 412 of the IRC or Section 302 of ERISA), whether or not
waived; (c) the
filing pursuant to Section 412(d) of the IRC or Section 303(d)
of ERISA of an
application for a waiver of the minimum funding standard with
respect to any
Plan; (d) the incurrence by Holdings, Intermediate Holdings, the
Parent
Guarantor, a Subsidiary of any of them or any ERISA Affiliate of
any of them of
any liability under Title IV of ERISA with respect to the
termination of any
Plan; (e) the receipt by Holdings, Intermediate Holdings, the
Parent Guarantor,
a Subsidiary of any of them or any ERISA Affiliate of any of
them from the PBGC
or a plan administrator of any notice relating to an intention
to terminate any
Plan or to appoint a trustee to administer any Plan under
Section 4042 of ERISA;
(f) the incurrence by Holdings, Intermediate Holdings, the
Parent Guarantor, a
Subsidiary of any of them or any ERISA Affiliate of any of them
of any liability
with respect to the withdrawal or partial withdrawal from any
Plan or
Multiemployer Plan; or (g) the receipt by Holdings, Intermediate
Holdings, the
Parent Guarantor, a Subsidiary of any of them or any ERISA
Affiliate of any of
them of any notice, or the receipt by any Multiemployer Plan
from Holdings,
Intermediate Holdings, the Parent Guarantor, any such Subsidiary
or any such
ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability
or a determination that a
15
<PAGE>
Multiemployer Plan is, or is expected to be, insolvent or in
reorganization,
within the meaning of Title IV of ERISA.
"Eurocurrency Liabilities" has the meaning assigned to that term
in
Regulation D of the Board of Governors of the Federal Reserve
System, as in
effect from time to time.
"Eurodollar Rate" means, for any Tranche for any Tranche Period,
the
rate determined by the Administrative Agent by reference to the
British Bankers'
Association Interest Settlement Rates for deposits in Dollars
appearing on the
applicable page of the Telerate Service (or any successor to or
substitute for
such service, providing rate quotations comparable to those
currently provided
by such service, as determined by the Administrative Agent from
time to time for
purposes of providing quotations of interest rates applicable to
deposits in
Dollars in the London interbank market) at approximately 11:00
a.m., London
time, on the second Business Day prior to the first day of such
Tranche Period,
as the rate for deposits with a maturity comparable to such
Tranche Period. In
the event that such rate is not available at such time for any
reason, then the
"Eurodollar Rate" shall be the rate at which deposits of
$5,000,000 and for a
maturity comparable to such Tranche Period are offered by the
principal London
office of JPMorgan Chase in immediately available funds in the
London interbank
market at approximately 11:00 a.m., London time, on the second
Business Day
prior to the first day of such Tranche Period.
"Eurodollar Rate Reserve Percentage" means, for any Tranche
Period
in respect of which Interest is computed by reference to the
Eurodollar Rate,
the reserve percentage applicable two Business Days before the
first day of such
Tranche Period under regulations issued from time to time by the
Board of
Governors of the Federal Reserve System (or any successor) (or
if more than one
such percentage shall be applicable, the daily average of such
percentages for
those days in such Tranche Period during which any such
percentage shall be so
applicable) for determining the maximum reserve requirement
(including, without
limitation, any emergency, supplemental or other marginal
reserve requirement)
with respect to liabilities or assets consisting of or including
Eurocurrency
Liabilities (or with respect to any other category of
liabilities that includes
deposits by reference to which the interest rate on Eurocurrency
Liabilities is
determined) having a term equal to such Tranche Period.
"Eurodollar Tranche" has the meaning specified in Section
2.12.
"Event of Bankruptcy" means, with respect to any Person,
that:
(i) such Person (a) shall generally not pay its debts as such
debts
become due or (b) shall admit in writing its inability to pay
its debts
generally or (c) shall make a general assignment for the benefit
of
creditors;
(ii) any proceeding shall be instituted by or against such
Person
seeking to adjudicate it as bankrupt or insolvent, or seeking
liquidation,
winding up, reorganization, arrangement, adjustment, protection,
relief or
composition of it or its debts under any law relating to
bankruptcy,
insolvency or reorganization or relief of debtors, or seeking
the entry of
an order for relief or the appointment of a receiver, trustee or
other
similar
16
<PAGE>
official for it or any substantial part of its property, and,
if
instituted against such Person, shall remain undischarged for a
period of
60 days; or
(iii) such Person shall take any corporate or similar action
to
authorize any of the actions set forth in the preceding clauses
(i) or
(ii).
"Excess Longer-Term Receivable Amount" means, as of any date
of
determination, an amount equal to the excess, if any, of (i) the
aggregate
Outstanding Balance of all Eligible Receivables required to be
paid in full
within more than 90 days but less than 121 days of the original
billing date
therefor over (ii) an amount equal to 5% of the aggregate
Outstanding Balance of
Eligible Receivables as of such date.
"Excluded Taxes" means, with respect to any Agent, any Lender or
any
other recipient of any payment to be made by or on account of
any Borrower
Obligation, (a) income or franchise taxes imposed on (or
measured by) its net
income by the United States of America, or by the jurisdiction
under the laws of
which such recipient is organized or in which its principal
office is located
or, in the case of any Lender, in which its applicable lending
office is
located, (b) any branch profits taxes imposed by the United
States of America or
any similar tax imposed by any other jurisdiction described in
clause (a) above
and (c) in the case of a Foreign Lender (other than an assignee
pursuant to a
request by the Borrower under Section 2.19(b)), any withholding
tax that is in
effect and would apply to amounts payable to such Foreign Lender
at the time
such Foreign Lender becomes a party to this Agreement (or
designates a new
lending office) or is attributable to such Foreign Lender's
failure to comply
with Section 2.15(e), except to the extent that such Foreign
Lender (or its
assignor, if any) was entitled, at the time of designation of a
new lending
office (or assignment), to receive additional amounts from the
Borrower with
respect to any withholding tax pursuant to Section 2.15(a).
"Existing Loan Agreement" has the meaning specified in the
Preliminary Statements.
"Facility Limit" shall mean, at any time, the sum of the
Conduit
Lending Limits then in effect; provided, that (i) the Facility
Limit may not at
any time exceed the Aggregate Commitment then in effect divided
by 1.02, and
(ii) from and after the Termination Date, the Facility Limit
shall at all times
equal the Aggregate Principal Balance.
"Federal Funds Rate" means, for any period, a fluctuating
interest
rate per annum equal for each day during such period to the
weighted average of
the rates on overnight Federal funds transactions with members
of the Federal
Reserve System arranged by Federal funds brokers, as published
for such day (or,
if such day is not a Business Day, for the next preceding
Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so
published for any
day which is a Business Day, the average of the quotations for
such day on such
transactions received by the Administrative Agent from three
Federal funds
brokers of recognized standing selected by it
"Fee Letters" means, collectively, the Administrative Agent
Fee
Letter and the Lender Fee Letter.
"Fees" has the meaning specified in Section 2.04(c).
17
<PAGE>
"Final Payout Date" means the date after the Termination Date
on
which the Borrower Obligations have been reduced to zero by
payment in full in
cash.
"Finance Charges" means, with respect to a Receivable, any
finance,
interest, late or similar charges owing by an Obligor in respect
of such
Receivable pursuant to the applicable Contract.
"Financial Covenant Default" means a default in the due
observance
or performance of any covenant, condition or agreement set forth
in any of
Sections 6.11 or 6.12 of the Senior Credit Agreement as in
effect on the date
hereof and without giving effect to any amendment, waiver,
supplement,
termination or other modification to the Senior Credit Agreement
made after the
date hereof, except that if any of Sections 6.11 or 6.12 of the
Senior Credit
Agreement is amended or waived prior to the termination of the
Senior Credit
Agreement, then references herein to such Sections shall give
effect to such
amendment or waiver.
"Financial Officer" of any Person means the chief financial
officer,
principal accounting officer, treasurer, assistant treasurer or
controller of
such Person.
"Foreign Lender" shall mean any Lender that is organized under
the
laws of a jurisdiction other than that in which the Borrower is
located. For
purposes of this definition, the United States of America, each
State thereof
and the District of Columbia shall be deemed to constitute a
single
jurisdiction.
"Fund" means Blackstone Capital Partners IV Merchant Banking
Fund
L.P., a Delaware limited partnership.
"Fund Affiliate" means (i) each Affiliate of the Fund that
is
neither an operating company nor a company controlled by an
operating company
and (ii) each general partner of the Fund or any Fund Affiliate
who is a partner
or employee of the Blackstone Group L.P.
"Funding Agent" means, with respect to any Lender Group, the
Person
identified as the "Funding Agent" for such Lender Group on
Schedule I, together
with any successor thereto designated pursuant to Article IX and
any Person that
becomes a Funding Agent for a new Lender Group pursuant to
Section 11.03(i).
"Funding Agent's Account" means, with respect to any Funding
Agent,
the account of such Funding Agent identified on Schedule I, or
such other
account as such Funding Agent may designate in writing to the
Borrower, the
Collection Agent and the Administrative Agent.
"GAAP" means generally accepted accounting principles as in
effect
in the United States of America from time to time, consistently
applied.
"Guarantee" of or by any Person (the "guarantor") means (a)
any
obligation, contingent or otherwise, of the guarantor
guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other
obligation of any
other Person (the "primary obligor") in any manner, whether
directly or
indirectly, and including any obligation of the guarantor,
direct or indirect,
(i) to purchase or pay (or advance or supply funds for the
purchase or payment
of)
18
<PAGE>
such Indebtedness or other obligation (whether arising by virtue
of partnership
arrangements, by agreement to keep well, to purchase assets,
goods, securities
or services, to take-or-pay or otherwise) or to purchase (or to
advance or
supply funds for the purchase of) any security for the payment
of such
Indebtedness or other obligation, (ii) to purchase or lease
property, securities
or services for the purpose of assuring the owner of such
Indebtedness or other
obligation of the payment thereof, (iii) to maintain working
capital, equity
capital or any other financial statement condition or liquidity
of the primary
obligor so as to enable the primary obligor to pay such
Indebtedness or other
obligation, (iv) under an agreement entered into for the purpose
of assuring in
any other manner the holders of such Indebtedness or other
obligation of the
payment thereof or to protect such holders against loss in
respect thereof (in
whole or in part) or (v) as an account party in respect of any
letter of credit
or letter of guaranty issued to support such Indebtedness or
other obligation,
or (b) any Adverse Claim on any assets of the guarantor securing
any
Indebtedness (or any existing right, contingent or otherwise, of
the holder of
Indebtedness to be secured by such an Adverse Claim) of any
other Person,
whether or not such Indebtedness or other obligation is assumed
by the
guarantor; provided, however, that the term "Guarantee" shall
not include
endorsements for collection or deposit, in either case in the
ordinary course of
business, or customary and reasonable indemnity obligations in
effect on the
Closing Date or entered into in connection with any acquisition
or disposition
of assets permitted under the Senior Credit Agreement.
"Hedge Counterparty" means any Person that enters into a
Credit
Default Swap with the Transferor.
"Holdings" means TRW Automotive Holdings Corp., a Delaware
corporation, and any successor thereto.
"Incipient Termination Event" means an event that but for notice
or
lapse of time or both would constitute a Termination Event.
"Indebtedness" of any Person means, without duplication, (a)
all
obligations of such Person for borrowed money, (b) all
obligations of such
Person evidenced by bonds, debentures, notes or similar
instruments, (c) all
obligations of such Person upon which interest charges are
customarily paid, (d)
all obligations of such Person under conditional sale or other
title retention
agreements relating to property or assets purchased by such
Person, (e) all
obligations of such Person issued or assumed as the deferred
purchase price of
property or services (other than current trade liabilities and
current
intercompany liabilities (but not any refinancings, extensions,
renewals or
replacements thereof) incurred in the ordinary course of
business and maturing
within 365 days after the incurrence thereof), (f) all
Guarantees by such Person
of Indebtedness of others, (g) all Capitalized Lease Obligations
of such Person,
(h) all payments that such Person would have to make in the
event of an early
termination, on the date Indebtedness of such Person is being
determined, in
respect of outstanding Swap Agreements, (i) all obligations,
contingent or
otherwise, of such Person as an account party in respect of
letters of credit
and (j) all obligations of such Person in respect of bankers'
acceptances. The
Indebtedness of any Person shall include the Indebtedness of any
partnership in
which such Person is a general partner, other than to the extent
that the
instrument or agreement evidencing such Indebtedness expressly
limits the
liability of such Person in respect thereof.
19
<PAGE>
"Indemnified Amounts" has the meaning specified in Section
10.01.
"Indemnified Party" has the meaning specified in Section
10.01.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Information Memorandum" means the Confidential Information
Memorandum dated January 2003 and relating to the transactions
contemplated by
the Transaction Documents, as modified or supplemented prior to
the Closing
Date.
"Intercompany Note" means the "Intercompany Note" under (and
as
defined in) the Originator Purchase Agreement.
"Intercreditor Agreement" means the Intercreditor Agreement
dated as
of the Closing Date between the Administrative Agent and
JPMorgan Chase, as
collateral agent under the Senior Credit Agreement, as such
agreement may be
amended, restated, supplemented or otherwise modified from time
to time.
"Interest" means, for any Tranche and any Tranche Period, the
sum
for each day during such Tranche Period of the following:
IR x PB + LF
------
Y
where:
IR = the Interest Rate for such Tranche for such day
PB = the Principal Balance of such Tranche on such day
Y = (a) in the case of a Tranche, the Interest Rate for which
is
based on the Base Rate, 365 or 366 as applicable and (b) in
the case of any other Tranche, 360
LF = the Liquidation Fee, if any, for such Tranche for such
Tranche Period
provided that no provision of this Agreement shall require the
payment or permit
the collection of Interest in excess of the maximum permitted by
applicable law;
and provided further that Interest for any Tranche shall not be
considered paid
by any distribution to the extent that at any time all or a
portion of such
distribution is rescinded or must otherwise be returned for any
reason.
"Interest Rate" means, with respect to any Tranche for any day
(i)
to the extent such Tranche is funded on such day by a Conduit
Lender through the
issuance of Commercial Paper, the CP Rate and (ii) otherwise,
the Alternate
Rate; provided that at all times following the occurrence and
during the
continuation of a Termination Event the Interest Rate for all
Tranches shall be
an interest rate per annum equal to the Base Rate in effect from
time to time
plus 2%.
20
<PAGE>
"Intermediate Holdings" means TRW Automotive Intermediate
Holdings
Corp., a Delaware corporation, and any successor thereto.
"Involuntary Bankruptcy Event" means the occurrence of an
event
that, but for notice or lapse of time or both, would constitute
such a
Termination Event of the type described in Section 7.01(e).
"IRC" means the Internal Revenue Code of 1986, as amended from
time
to time, and any successor statute.
"Joinder Agreement" means an agreement substantially in the form
of
Exhibit H pursuant to which a new Lender Group is established
hereunder pursuant
to Section 11.03(i).
"JPMorgan Chase" means JPMorgan Chase Bank, N.A., in its
individual
capacity, and its successors.
"Law" means any law (including common law), constitution,
statute,
treaty, regulation, rule, ordinance, order, injunction, writ,
decree or award of
any Official Body.
"Lender Default" means (i) the refusal (which has not been
retracted) of a Committed Lender to make available its portion
of any Borrowing
or (ii) a Committed Lender having notified in writing the
Borrower that it does
not intend to comply with its obligations to make available its
portion of any
Borrowings hereunder, in either case, provided that all
conditions to such
funding obligation have been satisfied.
"Lender Fee Letter" has the meaning specified in Section
2.04(c).
"Lender Group" means a group consisting of one or more
Conduit
Lenders, one or more Committed Lenders and a Funding Agent for
such Lenders, as
specified on Schedule I or in the Joinder Agreement pursuant to
which such
Lender Group is established pursuant to Section 11.03(i).
"Lender Group Limit" means, with respect to any Lender Group,
the
aggregate Conduit Lending Limit(s) of the Conduit Lender(s) in
such Lender
Group.
"Lender Group Percentage" means, for any Lender Group, the
percentage equivalent of a fraction (expressed out to five
decimal places), the
numerator of which is the aggregate Commitments of all Committed
Lenders in such
Lender Group and the denominator of which is the Aggregate
Commitment.
"Lenders" means, collectively, the Committed Lenders and the
Conduit
Lenders.
"Liquidation Fee" means for (i) any Tranche Period held by a
Conduit
Lender for which Interest is computed by reference to the CP
Rate and a
reduction of the Principal Balance of the relevant Tranche is
made for any
reason or (ii) any Tranche Period for which Interest is computed
by reference to
the Eurodollar Rate and a reduction of the Principal Balance of
the relevant
Tranche is made for any reason on any day other than the last
day of such
Tranche Period, the amount, if any, by which (A) the additional
Interest
(calculated without taking into
21
<PAGE>
account any Liquidation Fee or any shortened duration of such
Tranche Period
pursuant to clause (iii) of the definition thereof) which would
have accrued
during such Tranche Period (or, in the case of clause (i) above,
during the
period until the maturity of the underlying commercial paper
tranches) on the
reductions of Principal Balance of the Tranche relating to such
Tranche Period
had such reductions not occurred, exceeds (B) the income, if
any, received by
the Conduit Lender or the Committed Lender which holds such
Tranche from the
investment of the proceeds of such reductions of Principal
Balance. A
certificate as to the amount of any Liquidation Fee (including
the computation
of such amount) shall be submitted by the affected Conduit
Lender or Committed
Lender to the Borrower and shall be conclusive and binding for
all purposes,
absent manifest error.
"Loan" means a loan made to the Borrower pursuant to Article
II.
"Loss and Dilution Reserve" means, on any date, an amount equal
to:
LDRR x NRB
where: LDRR = the Loss and Dilution Reserve Ratio on such
date.
NRB = the Net Receivables Balance at the close of business of
the
Collection Agent on such date.
"Loss and Dilution Reserve Ratio" means, on any day, the sum
of:
(a) the greater of the Loss Reserve Floor and the Loss
Reserve
Ratio ; plus
(b) the greater of the Dilution Reserve Floor and the
Dilution
Reserve Ratio.
"Loss Horizon Ratio" means, as of any Monthly Reporting Date
and
continuing until (but not including) the next Monthly Reporting
Date, the amount
obtained by dividing (i) the sum of all sales which gave rise to
Receivables
during the three Calculation Periods immediately preceding such
earlier Monthly
Reporting Date plus 0.25 times the sum of all sales which gave
rise to
Receivables during the fourth Calculation Period immediately
preceding such
earlier Monthly Reporting Date by (ii) the Net Receivables
Balance as of the end
of the Calculation Period immediately preceding such earlier
Monthly Reporting
Date.
"Loss Reserve Floor" means a percentage equal to 25%.
"Loss Reserve Ratio" means, as of any Monthly Reporting Date
and
continuing until (but not including) the next Monthly Reporting
Date, an amount
(expressed as a percentage) that is calculated as follows:
LRR = SF x DR x LHR x PTF
where:
LRR = Loss Reserve Ratio;
22
<PAGE>
SF = the Stress Factor;
DR = the highest three-month rolling average Default Ratio that
occurred
during the period of twelve consecutive Calculation Periods
immediately
preceding such earlier Monthly Reporting Date;
LHR = the Loss Horizon Ratio; and
PTF = the Payment Terms Factor.
"Management Group" shall mean the group consisting of the
directors,
executive officers and other management personnel of TRW
Automotive, Holdings
and Intermediate Holdings on the Closing Date together with (1)
any new
directors whose election by such boards of directors or whose
nomination for
election by the stockholders of TRW Automotive, Holdings, or
Intermediate
Holdings, as applicable, was approved by a vote of a majority of
the directors
of TRW Automotive, Holdings or Intermediate Holdings, as
applicable, then still
in office who were either directors on the Closing Date or whose
election or
nomination was previously so approved and (2) executive officers
and other
management personnel of TRW Automotive, Holdings or Intermediate
Holdings, as
applicable, hired at a time when the directors on the Closing
Date together with
the directors so approved constituted a majority of the
directors of TRW
Automotive, Holdings or Intermediate Holdings, as
applicable.
"Material Adverse Effect" means a material adverse effect on (i)
the
ability of any Transaction Party to perform its obligations
under any
Transaction Document, (ii) the legality, validity or
enforceability of this
Agreement or any other Transaction Document, (iii) the
Borrower's or any Secured
Party's interest in the Receivables generally or in any material
portion of the
Receivables, the Related Security or the Collections with
respect thereto, (iv)
the collectibility of the Receivables generally or of any
material portion of
the Receivables or (v) the business, operations, properties,
assets or financial
condition of (A) the Parent Guarantor and its Subsidiaries,
taken as a whole,
(B) the Transferor or (C) the Borrower.
"Material Indebtedness" means Indebtedness (other than the
Loans) of
any one or more of the Transaction Parties in an aggregate
principal amount
exceeding $40,000,000.
"Maturity Date" means the earlier of (i) first Settlement Date
that
occurs 6 months after the Termination Date and (ii) the date on
which the Loans
become due and payable pursuant to Section 7.02.
"Maximum Percentage Factor" means 100%.
"Monthly Report" means a report in substantially the form of,
and
containing the information described in, Exhibit A-1 to the
Servicing Agreement,
and such additional information as any Funding Agent may
reasonably request from
time to time, duly completed and furnished by the Collection
Agent to each
Funding Agent pursuant to Section 2.3(a) of the Servicing
Agreement.
"Monthly Reporting Date" means the tenth Business Day
immediately
succeeding each Calculation Period, or if that day is not a
Business Day, the
next following Business Day.
23
<PAGE>
"Monthly Settlement Date" means the first Weekly Settlement Date
to
occur in each calendar month.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined
in
Section 4001(a)(3) of ERISA to which any Transaction Party or
any ERISA
Affiliate (other than one considered an ERISA Affiliate only
pursuant to
subsection (m) or (o) of IRC Section 414) is making or accruing
an obligation to
make contributions, or has within any of the preceding five plan
years made or
accrued an obligation to make contributions.
"Net Receivables Balance" means at any time an amount equal to
(i)
the aggregate Outstanding Balance of Pool Receivables that
qualify as Eligible
Receivables at such time minus (ii) the aggregate amount by
which the
Outstanding Balance of Eligible Receivables of each Obligor
(treating each
Obligor and its Affiliates as if they were a single Obligor), in
each case
reduced by the Retro Pricing Accruals related to such Obligor,
exceeds the
Concentration Limit for such Obligor minus (iii) the Excess
Longer-Term
Receivable Amount minus (iv) unapplied cash Collections of the
Receivables minus
(v) the aggregate amount of all Retro Pricing Accruals.
"Note" has the meaning specified in Section 2.01(b).
"Notional Amount" means with respect to any Special Obligor
for
which a Credit Default Swap has been entered into, the notional
amount of such
Credit Default Swap (which shall be equal to zero at all times
on and after the
termination of such Credit Default Swap).
"Obligor" means a Person obligated to make payments pursuant to
a
Contract.
"Offering Memorandum" shall mean the Offering Memorandum,
dated
February 6, 2003, in respect of the "Senior Notes" and the
"Senior Subordinated
Notes" (as defined in the Senior Credit Agreement).
"Official Body" shall mean any government or political
subdivision
or any agency, authority, bureau, central bank, commission,
department or
instrumentality of any such government or political subdivision,
or any court,
tribunal, grand jury or arbitrator, in each case whether foreign
or domestic.
"Originator Purchase Agreement" means the Receivables
Purchase
Agreement dated as of the Closing Date between the Transferor
and the
Originators, as amended, restated, supplemented or otherwise
modified from time
to time in accordance with the terms hereof and thereof.
"Originators" means, collectively, the Persons identified on
Schedule VII under the heading "Originators," and any other
Persons that may
from time to time hereafter become "Sellers" under the
Originator Purchase
Agreement in accordance with the terms thereof.
"Other Companies" means, collectively, the Originators, the
Parent
Guarantor and all of their respective Subsidiaries and
Affiliates except the
Borrower and the Transferor.
24
<PAGE>
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges
or similar
levies arising from any payment made hereunder or from the
execution, delivery
or enforcement of, or otherwise with respect to, any Transaction
Document.
"Outstanding Balance" means, with respect to any Receivable at
any
time, the then outstanding principal amount thereof, excluding
any Finance
Charges related thereto.
"Parent Guarantor" means TRW Automotive, and any successor
thereto.
"Participant" has the meaning specified in Section 11.03(f).
"Payment Terms Factor" means (i) for the period from the
Closing
Date until (but not including) the fourth Monthly Reporting Date
thereafter 1.11
and (ii) for each three-month period to occur thereafter from
and including a
Monthly Reporting Date to but excluding the third Monthly
Reporting Date
thereafter, a fraction, the numerator of which is the sum of (x)
the weighted
average payment terms (based upon the Outstanding Balance of the
Receivables and
expressed as a number of days to their respective due dates) for
the Receivables
generated by the Originators during the Calculation Period
immediately preceding
such earlier Monthly Reporting Date and (y) 60, and the
denominator of which is
90.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to
and defined in ERISA.
"Percentage Factor" means the fraction (expressed as a
percentage)
computed on any date of determination as follows:
APB + TR
--------
NRB
where:
APB = the Aggregate Principal Balance on the date
of such computation; provided that, solely
for purposes of computing the Percentage
Factor, the Aggregate Principal Balance on
any day shall be deemed to be reduced by an
amount equal to the aggregate amount of funds
then held in the Collateral Account which are
then available to be withdrawn.
TR = Total Reserves on the date of such computation.
NRB = the Net Receivables Balance on the date of such
computation.
"Performance Guarantor" means, collectively, the Parent
Guarantor
and the Originators from time to time parties to the Performance
Guaranty as
"Performance Guarantors" thereunder.
"Performance Guaranty" means that certain Amended and
Restated
Performance Guaranty dated as of the Amendment Effective Date
among the
Performance Guarantors, the
25
<PAGE>
Borrower, the Transferor and the Administrative Agent (for the
benefit of the
Secured Parties), as amended, restated, supplemented or
otherwise modified from
time to time in accordance with the terms hereof and
thereof.
"Permitted Adverse Claims" means (i) Adverse Claims created
under
this Agreement or the Originator Purchase Agreement, (ii) liens
for taxes,
assessments or other governmental charges or levies not yet due
and payable or
the validity of which are being contested by a Transaction Party
in good faith
by appropriate proceedings and with respect to which reserves in
conformity with
GAAP have been provided on the books of such Transaction Party,
(iii) Adverse
Claims with respect to Pool Receivables which are not, and have
never been,
treated as Eligible Receivables so long as the aggregate amount
of liabilities
secured by such Adverse Claims does not exceed $1,000,000
(excluding any Adverse
Claims which are released or otherwise terminated within 30 days
of the date on
which a Responsible Officer of any Transaction Party obtains
actual knowledge
thereof) and (iv) Adverse Claims arising under the Security
Documents (as
defined in the Senior Credit Agreement) that do not relate to
any Purchased
Receivables Property (as defined in the Intercreditor Agreement)
except, with
respect to Records (as defined in the Intercreditor Agreement),
to the extent
provided therein.
"Permitted Holder" means the Fund, the Fund Affiliates and
the
Management Group.
"Permitted Investments" means, with respect to the
Collateral
Account and any Collections received by the Borrower pursuant to
Section
2.06(h), any of the following investments denominated and
payable in Dollars:
(a) readily marketable debt securities issued by, or the full
and timely payment
of which is guaranteed by the full faith and credit of, the
federal government
of the United States of America, (b) insured demand deposits,
time deposits and
certificates of deposit of any Eligible Account Bank that is
organized under the
laws of the United States of America, (c) repurchase obligations
with a term of
not more than 30 days for underlying securities of the types
described in clause
(a) above entered into with a bank meeting the qualifications
described in
clause (b) above, (d) no load money market funds rated in the
highest ratings
category by each of Moody's and S&P (which rating, in the
case of S&P, shall be
AAAm or AAAmg and shall not have the "r" symbol attached to such
rating), (e)
commercial paper of any corporation incorporated under the laws
of the United
States of America, provided that such commercial paper is rated
at least A-1
(and without any "r" symbol attached to any such rating) by
S&P and at least
Prime-1 by Moody's, and (f) cash and cash escrow agreements.
"Person" means an individual, partnership, corporation
(including a
business trust), limited liability company, joint stock company,
trust,
unincorporated association, joint venture or other entity, or a
government or
any political subdivision or agency thereof.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of
ERISA or Section
412 of the IRC and in respect of which any Transaction Party or
any ERISA
Affiliate is (or, if such plan were terminated, would under
Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
26
<PAGE>
"Pool Receivable" means any Receivable which has been acquired
by
the Transferor from an Originator pursuant to the Originator
Purchase Agreement
and sold by the Transferor to the Borrower pursuant to the
Transfer Agreement.
"Portfolio Report" means any Monthly Report, Weekly Report or
Daily
Report.
"Principal Balance" means, with respect to any Tranche, the
original
principal amount of any Loan made hereunder that has been
allocated to such
Tranche pursuant to Section 2.10, as such amount may be divided
or combined in
accordance with such Section, in each case as reduced from time
to time by
Collections received by the applicable Lender(s) holding such
Tranche from
distributions made pursuant to Section 2.06 or Section 2.07, as
applicable, on
account of the Principal Balance of such Tranche; provided that
if such
Principal Balance shall have been reduced by any distribution
and thereafter all
or a portion of such distribution is rescinded or must otherwise
be returned for
any reason, such Principal Balance shall be increased by the
amount of such
rescinded or returned distribution, as though it had not been
received by such
Lender(s).
"Proceeds" means "proceeds" as defined in Section 9-102 of the
UCC
as in effect on the date hereof in the State of New York.
"Program Manager" means, with respect to a Conduit Lender,
the
Person (if any) identified on Schedule I as the "Program
Manager" for such
Conduit Lender, and the successors and permitted assigns of such
Person.
"Program Support Agreement" means and includes any agreement
entered
into by any Program Support Provider providing for the issuance
of one or more
letters of credit for the account of a Conduit Lender, the
issuance of one or
more surety bonds for which such Conduit Lender is obligated to
reimburse the
applicable Program Support Provider for any drawings thereunder,
the sale by
such Conduit Lender to any Program Support Provider of the Loans
funded by such
Conduit Lender (or portions thereof or participations therein)
and/or the making
of loans and/or other extensions of credit in connection with
such Conduit
Lender's commercial paper program, together with any letter of
credit, surety
bond, swap or other instrument issued thereunder.
"Program Support Provider" means, with respect to any
Conduit
Lender, each Committed Lender with respect to such Conduit
Lender and any other
Person now or hereafter extending credit, or having a commitment
to extend
credit to or for the account of, or to make purchases from, such
Conduit Lender
or issuing a letter of credit, surety bond, swap or other
instrument to support
any obligations arising under or in connection with such Conduit
Lender's
securitization program.
"Pro Rata Share" means, for any Committed Lender in any
Lender
Group, (a) the Commitment of such Committed Lender divided by
the sum of the
Commitments of all Committed Lenders in such Lender Group and
(b) after the
Commitments of all the Committed Lenders in such Lender Group
have been
terminated, the outstanding principal amount of the Loans funded
by such
Committed Lender divided by the outstanding principal amount of
the Loans funded
by all the Committed Lenders in such Lender Group.
27
<PAGE>
"Rate Type" means the Adjusted Eurodollar Rate, the Base Rate or
the
CP Rate.
"Rating Agencies" shall mean on any date of determination the
rating
agencies then rating Commercial Paper at the request of any
Conduit Lender.
"Receivable" means the indebtedness and other obligations of
any
Obligor resulting from the provision or sale of merchandise,
goods or services
by an Originator, including, without limitation, the right to
payment of any
interest or finance charges, late payment charges, delinquency
charges,
extension or collection fees and all other obligations of such
Obligor with
respect thereto; provided that the term "Receivable" shall not
include any such
indebtedness or obligation which, pursuant to the terms of the
Originator
Purchase Agreement to which such Originator is a party, is owed
by an "Excluded
Obligor" (as defined therein) or is otherwise of a type which is
not to be sold
to the Transferor thereunder.
"Register" has the meaning specified in Section 11.03(d).
"Related Security" means with respect to any Receivable:
(i) all security interests or liens and property subject
thereto from time to time purporting to secure payment of
such
Receivable, whether pursuant to the Contract related to such
Receivable or otherwise, together with all financing
statements
authorized by an Obligor describing any collateral securing
such
Receivable;
(ii) all guaranties, insurance and other agreements or
arrangements of whatever character from time to time supporting
or
securing payment of such Receivable whether pursuant to the
Contract
related to such Receivable or otherwise;
(iii) all other books, records and other information
(including, without limitation, computer programs, tapes,
discs,
punch cards, data processing software and related property
and
rights) relating to such Receivable and the related Obligor;
(iv) all of the Borrower's, the Transferor's and the
applicable Originator's right, title and interest in and to all
(A)
Contracts or other agreements or documents to the extent that
they
evidence, secure or otherwise relate to such Receivable and (B)
to
the extent included in the definition of "Related Security" in
the
Originator Purchase Agreement, returned or repossessed goods,
if
any, the sale of which by the applicable Originator gave rise
to
such Receivable;
(v) all of the Borrower's and the Transferor's right, title
and interest in, to and under the Collateral Agreements;
(vi) in the case of the Borrower and the Transferor, each
Credit Default Swap; and
(vii) all Proceeds of the foregoing.
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"Release" has the meaning specified in Section 2.06(b)(iv).
"Reportable Event" means any reportable event as defined in
Section
4043(c) of ERISA or the regulations issued thereunder, other
than those events
as to which the 30-day notice period referred to in Section
4043(c) of ERISA has
been waived, with respect to a Plan (other than a Plan
maintained by an ERISA
Affiliate that is considered an ERISA Affiliate only pursuant to
subsection (m)
or (o) of Section 414 of the IRC).
"Reporting Date" means any date on which a Portfolio Report
is
delivered or required to be delivered by the Collection Agent
pursuant to
Section 2.3 of the Servicing Agreement.
"Required Committed Lenders" means Committed Lenders
representing
more than 50% of the Aggregate Commitment or, if the Commitments
have been
terminated, Committed Lenders that represented more than 50% of
the Aggregate
Commitment immediately prior to such termination; provided that,
subject to the
terms of the relevant Asset Purchase Agreement, so long as any
Conduit Lender in
any Lender Group holds any Loans hereunder, the Committed
Lenders in such Lender
Group shall give any vote or direction hereunder only with the
consent or at the
direction of the related Funding Agent on behalf of such Conduit
Lender. Solely
for purposes of this definition, a Lender that has defaulted on
its funding
obligations hereunder (a "Defaulted Lender") shall not be
considered a
"Committed Lender" and the Aggregate Commitment shall be
calculated without
including the Commitment of such Defaulted Lender.
"Responsible Officer" means, with respect to any Transaction
Party,
the president, any vice president, the chief financial officer,
the treasurer,
the comptroller, the assistant comptroller or the assistant
treasurer of such
Transaction Party.
"Restricted Payments" has the meaning specified in Section
5.01(o).
"Retro Pricing Accruals" means, for any Obligor, after the
Retro
Pricing Approval Date, the aggregate amount of accruals
identified in Parent
Guarantor's consolidated balance sheet in accordance with GAAP
and consistent
with the Parent Guarantor's practices as in effect on the
Amendment Effective
Date (a) that relate to Receivables, and (b) that are
established in respect of
liabilities that may result from annual retroactive price
negotiations between
the applicable Originator or Parent Guarantor and such Obligor
and at all other
times, zero.
"Retro Pricing Adjustment" means a credit granted to any
Obligor
pursuant to annual retroactive price negotiations between the
applicable
Originator or Parent Guarantor and such Obligor.
"Retro Pricing Approval Date" means the date specified as such
in a
written notice delivered by all of the Committed Lenders to the
Collection
Agent, which notice shall not be delivered until after the next
due date on
which the Committed Lenders receive a satisfactory report
pursuant to Section
5.02(b).
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<PAGE>
"S&P" means Standard & Poor's Rating Services, a
division of
McGraw-Hill Companies, Inc.
"Scheduled Commitment Termination Date" means December 31,
2009.
"SEC" means the Securities and Exchange Commission.
"Secured Parties" means, collectively, the Lenders, each Agent,
each
Hedge Counterparty and each other Indemnified Party.
"Senior Credit Agreement" means that certain Fourth Amended
and
Restated Credit Agreement dated as of December 17, 2004 among
TRW Automotive
Holdings Corp., TRW Automotive Intermediate Holdings Corp., TRW
Automotive, the
foreign subsidiary borrowers party thereto, the lenders party
thereto from time
to time, JPMorgan Chase Bank, as administrative agent, and the
other agents
party thereto, as such agreement is amended, supplemented or
otherwise modified
from time to time.
"Senior Note Indentures" means the Indentures dated as of
February
18, 2003, among the TRW Automotive, the subsidiaries party
thereto and the
trustee named therein from time to time relating to the Senior
Notes (as defined
in the Senior Credit Agreement), as in effect on the Closing
Date and as
amended, restated, supplemented or otherwise modified from time
to time in
accordance with the requirements thereof.
"Senior Subordinated Note Indentures" means the Indentures dated
as
of February 18, 2003, among TRW Automotive, the subsidiaries
party thereto and
the trustee named therein from time to time relating to the
Senior Subordinated
Notes (as defined in the Senior Credit Agreement), as in effect
on the Closing
Date and as amended, restated, supplemented or otherwise
modified from time to
time in accordance with the requirements thereof.
"Servicing Agreement" means that certain Amended and
Restated
Servicing Agreement dated as of the Amendment Effective Date
among the
Collection Agent, the Borrower, the Sub-Collection Agents and
the Administrative
Agent, as amended, restated, supplemented or otherwise modified
from time to
time in accordance with the terms hereof and thereof.
"Servicing Fee" has the meaning specified in Section
2.04(b).
"Servicing Fee Payment Date" means each Monthly Reporting
Date.
"Servicing Fee Percentage" means 1.0% per annum or, following
a
Collection Agent Default and the appointment of a successor
Collection Agent
pursuant to Article VI, such other rate per annum as may be
agreed by such
successor Collection Agent and the Administrative Agent with the
consent of the
Required Committed Lenders pursuant to Section 2.04(b).
"Servicing Fee Reserve" means, on any date, an amount equal
to:
(OBR x SFRR)
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<PAGE>
where:
OBR = the aggregate Outstanding Balance
of all Pool Receivables at the close
of business of the Collection Agent
on such date.
SFRR = the Servicing Fee Reserve Ratio on such date.
"Servicing Fee Reserve Ratio" means, as of any Monthly
Reporting
Date and continuing until (but not including) the next
succeeding Monthly
Reporting Date, an amount (expressed as a percentage) equal to
the product of
(i) the Servicing Fee Percentage and (ii) a fraction having as
the numerator, 2
times the Days Sales Outstanding as of such earlier Monthly
Reporting Date, and
as the denominator, 360.
"Settlement Date" for any Tranche means (i) the last day of
each
Tranche Period for such Tranche and (ii) on and after the
occurrence of the
Termination Date, each other Business Day specified by the
Administrative Agent
(which, in the discretion of the Administrative Agent, may be as
frequently as
daily) in a written notice to the Collection Agent and the
Funding Agents.
"Special Concentration Factor" means, with respect to any
Special
Obligor, the percentage specified opposite such Special
Obligor's name on
Schedule II, as such Schedule may be amended from time to time
in accordance
with the definition of "Special Obligor."
"Special Obligor" means, at any time, an Obligor specified
on
Schedule II and for which all conditions specified with respect
to such Obligor
on Schedule II are satisfied (including, if applicable, the
maintenance of a
Credit Default Swap with respect to such Obligor), as such
Schedule may be
amended from time to time as set forth below. Schedule II may be
amended from
time to time by the Administrative Agent to add the name of any
Obligor or to
increase the Special Concentration Factor of any Obligor
specified therein only
at the request of the Borrower and with the prior written
consent of the
Required Committed Lenders. Upon not less than three Business
Days' notice to
the Borrower and the Collection Agent, the Administrative Agent
may in its sole
discretion and, if so directed by the Required Committed Lenders
the
Administrative Agent shall, from time to time amend Schedule II
to delete the
name of any Obligor or to reduce the Special Concentration
Factor of any
Obligor; provided that, subject to the provisions of Schedule
II, no such
deletion or amendment shall be made with respect to any Special
Obligor for
which a Credit Default Swap remains in effect. Any amendment to
Schedule II
shall be effected by the delivery of a new Schedule II by the
Administrative
Agent to the Borrower, the Collection Agent and each Funding
Agent.
"Special Indemnified Amounts" has the meaning specified in
Section
2.6(a) of the Servicing Agreement.
"Specified Bankruptcy Opinion Provisions" means the factual
assumptions (including those contained in the factual
certificate referred to
therein) and the actions to be taken by the Transaction Parties,
in each case as
specified in the legal opinion of Simpson Thacher & Bartlett
relating to certain
bankruptcy matters delivered on the Closing Date.
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<PAGE>
"Stress Factor" means at any time: (i) so long as the Parent
Guarantor has a published Debt Rating from S&P of B or
better and from Moody's
of B2 or better, 2.0 and (ii) at any other time, 2.5.
"Sub-Collection Agent" has the meaning specified in Section 2.1
of
the Servicing Agreement.
"Subsidiary" means, with respect to any Person (herein referred
to
as the "parent"), any corporation, partnership, association or
other business
entity (a) of which securities or other ownership interests
representing more
than 50% of the equity or more than 50% of the ordinary voting
power or more
than 50% of the general partnership interests are, at the time
any determination
is being made, directly or indirectly, owned, controlled or
held, or (b) that
is, at the time any determination is made, otherwise controlled
(as defined in
the definition of Affiliate), in each case of clauses (a) and
(b), by the parent
or one or more Subsidiaries of the parent or by the parent and
one or more
Subsidiaries of the parent.
"Swap Agreement" means any agreement with respect to any
swap,
forward, future or derivative transaction or option or similar
agreement
involving, or settled by reference to, one or more rates,
currencies,
commodities, equity or debt instruments or securities, or
economic, financial or
pricing indices or measures of economic, financial or pricing
risk or value or
any similar transaction or any combination of these
transactions, provided that
no phantom stock or similar plan providing for payments only on
account of
services provided by current or former directors, officers,
employees or
consultants of the Parent Guarantor or a Subsidiary thereof
shall be a Swap
Agreement.
"Tangible Net Worth" means at any time an amount (calculated
without
duplication) equal to (a) the Outstanding Balance of all
Receivables purchased
by the Borrower from the Transferor under the Transfer Agreement
(other than
Defaulted Receivables) plus (b) cash and cash equivalents owned
by the Borrower,
minus (c) the Aggregate Principal Balance, minus (d) the
aggregate outstanding
principal balance of the Intercompany Note.
"Taxes" means any and all present or future taxes
(including,
without limitation, value added taxes), levies, imposts, duties
(including stamp
duties), deductions, charges (including, without limitation, ad
valorem charges)
or withholdings imposed by any Official Body.
"Termination Date" means the earliest of (a) the Scheduled
Commitment Termination Date, (b) the date determined pursuant to
Section 7.01
and (c) the date specified by the Borrower on not less than
thirty days' notice
to the Administrative Agent and each Funding Agent.
"Termination Event" has the meaning specified in Section
7.01.
"Total Reserves" means, at any time, an amount equal to the sum
of
(i) the Loss and Dilution Reserve plus (ii) the Carrying Cost
Reserve plus (iii)
the Servicing Fee Reserve.
"Tranche" has the meaning specified in Section 2.10.
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<PAGE>
"Tranche Period" means, with respect to any Tranche, (i)
initially,
the period commencing on (and including) the applicable
Borrowing Date and
ending on (and including) the earlier of the next Monthly
Settlement Date and
the Weekly Settlement Date specified by the Borrower in the
applicable Borrowing
Request, and (ii) thereafter, each successive period commencing
on (but
excluding) the last day of the immediately preceding Tranche
Period for such
Tranche and ending on (and including) the earlier of the next
Monthly Settlement
Date and the Weekly Settlement Date specified by the Borrower in
a written
notice to each Funding Agent not later than (x) in the case of a
Eurodollar
Tranche, 1:00 P.M. (New York City time) on the third Business
Day immediately
before the first day of such Tranche Period and (y) in the case
of any other
Tranche, 9:30 A.M. (New York City time) on the Business Day
immediately before
the first day of such Tranche Period; provided, however,
that:
(i) any Tranche Period (other than of one day) which would
otherwise end on a day which is not a Business Day shall be
extended
to the next succeeding Business Day (provided, however, that
if
Interest in respect of such Tranche Period is computed by
reference
to the Adjusted Eurodollar Rate, and such Tranche Period
would
otherwise end on a day which is not a Business Day, and there is
no
subsequent Business Day in the same calendar month as such day,
such
Tranche Period shall end on the next preceding Business
Day);
(ii) in the case of any Tranche Period of one day, (A) if
such
Tranche Period is the initial Tranche Period for a Tranche,
such
Tranche Period shall be the applicable Borrowing Date; (B)
any
subsequently occurring Tranche Period which is one day shall, if
the
immediately preceding Tranche Period is more than one day, be
the
last day of such immediately preceding Tranche Period and, if
the
immediately preceding Tranche Period is one day, be the day
next
following such immediately preceding Tranche Period; and (C) if
such
Tranche Period occurs on a day immediately preceding a day which
is
not a Business Day, such Tranche Period shall be extended to
the
next succeeding Business Day;
(iii) in the case of any Tranche Period for any Tranche
which
commences before the Termination Date and would otherwise end on
a
date occurring after the Termination Date, such Tranche Period
shall
end on the Termination Date and the duration of each Tranche
Period
which commences on or after the Termination Date shall be a
period
from and including the last day of the immediately preceding
Tranche
Period (or, in the case of the initial Tranche Period
immediately
following the Termination Date, from and including the
Termination
Date) to but excluding the next Settlement Date; and
(iv) at any time when the Base Rate shall have been in
effect
for a Tranche Period of ten consecutive Business Days, and
the
conditions set forth in clauses (i) and (iv) of the definition
of
Alternate Rate do not exist, any Funding Agent may, on behalf of
the
Committed Lenders in its Lender Group, upon one Business
Day's
notice to the Borrower (with a copy to the Administrative
Agent),
select as the next succeeding Tranche Period for such Tranche
(and
any subsequent Tranche Periods designated by such Funding Agent)
a
period of one month during which Interest shall be computed
by
reference to the Adjusted
33
<PAGE>
Eurodollar Rate; provided, however, that prior to such selection
the
Borrower may notify the applicable Funding Agent that, in view
of
anticipated Collections and repayments, Interest should continue
to
be computed by reference to the Base Rate.
"Transaction Documents" means this Agreement, the Notes, the
Transfer Agreement, the Originator Purchase Agreement, the
Servicing Agreement,
the Performance Guaranty, the Control Agreements, the Fee
Letters, the Credit
Default Swaps and all other instruments, documents and
agreements executed
and/or delivered in connection therewith.
"Transaction Parties" means, collectively, the Borrower, the
Transferor, the Originators, the Parent Guarantor and (so long
as it is TRW
Automotive U.S. LLC or an Affiliate thereof) the Collection
Agent and each
Sub-Collection Agent.
"Transfer Agreement" means the Amended and Restated Transfer
Agreement dated as of the Amendment Effective Date between the
Borrower and the
Transferor, as amended, restated, supplemented or otherwise
modified from time
to time in accordance with the terms hereof and thereof.
"Transferor" means TRW Automotive Receivables LLC, a
Delaware
limited liability company, and any successor thereto.
"TRW Automotive" means TRW Automotive Inc. (f/k/a TRW
Automotive
Acquisition Corp.), a Delaware corporation, and any successor
thereto.
"TRW Automotive U.S. LLC" means TRW Automotive U.S. LLC, a
Delaware
limited liability company, and any successor thereto.
"UCC" means the Uniform Commercial Code as from time to time
in
effect in the specified jurisdiction.
"Weekly Report" means a report furnished by the Collection
Agent
pursuant to Section 2.3(b) of the Servicing Agreement in
substantially the form
attached as Exhibit A-2 to the Servicing Agreement.
"Weekly Reporting Date" means the third Business Day of each
calendar week.
"Weekly Settlement Date" means the second Business Day
immediately
following each Weekly Reporting Date.
"Withdrawal Liability" shall mean liability to a Multiemployer
Plan
as a result of a complete or partial withdrawal from such
Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
SECTION 1.02 Other Terms. All accounting terms not
specifically
defined herein shall be construed in accordance with GAAP. All
terms used in
Article 9 of the UCC in the State of New York, as in effect on
the date hereof
and not specifically defined herein, are used herein as defined
in such Article
9. Unless otherwise expressly indicated, all references
34
<PAGE>
herein to "Article," "Section," "Schedule" or "Exhibit" means
articles and
sections of, and schedules and exhibits to, this Agreement.
Headings are for
purposes of reference only and shall not otherwise affect the
meaning or
interpretation of any provision hereof. Any reference to any Law
shall be deemed
to be a reference to such Law as the same may be amended or
re-enacted from time
to time. Any reference to any Person appearing in any of the
Transaction
Documents shall include its successors and permitted
assigns.
SECTION 1.03 Amendment and Restatement. Subject to the
satisfaction
of the conditions precedent set forth in Section 3.01, this
Agreement amends and
restates the Existing Loan Agreement in its entirety. This
Agreement is not
intended to constitute a novation of any obligations under the
Existing Loan
Agreement. Upon the effectiveness of this Agreement (the date of
such
effectiveness being the "Amendment Effective Date"), each
reference to the
Existing Loan Agreement in any other document, instrument or
agreement executed
and/or delivered in connection therewith shall mean and be a
reference to this
Agreement. By its execution of this Agreement, each of the
parties hereto hereby
consents to the execution and delivery of (i) the Servicing
Agreement, the
Transfer Agreement and the Performance Guaranty (in each case as
amended and
restated as of the date hereof) by the parties thereto and (ii)
the amendment of
even date herewith to the Originator Purchase Agreement.
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
SECTION 2.01 The Loans.
(a) On the terms and subject to the conditions hereof, on
the
Amendment Effective Date, and thereafter from time to time prior
to the
Termination Date, each Conduit Lender may in its sole
discretion, and each
Committed Lender shall if the Conduit Lender in its related
Lender Group elects
not to do so, make Loans to the Borrower in an amount in
Dollars, for each
Lender Group, equal to its Lender Group Percentage of the amount
requested by
the Borrower pursuant to Section 2.02; provided that, after
giving effect to
such Loans:
(i) the aggregate outstanding principal amount of the Loans
for any Lender Group shall not exceed its Lender Group Limit;
and
(ii) the aggregate outstanding principal amount of the Loans
for all Lenders shall not exceed the Facility Limit.
If there is more than one Committed Lender in a Lender Group,
each such
Committed Lender shall lend its Pro Rata Share of such Lender
Group's Lender
Group Percentage of each Loan, to the extent not loaned by the
related Conduit
Lender. Each borrowing of Loans hereunder (each a "Borrowing")
shall be in a
minimum principal amount equal to such amount as will ensure
that (x) no Lender
Group's Lender Group Percentage of such Borrowing would be less
than $1,000,000
and (y) each Lender Group's Lender Group Percentage of such
Borrowing would be
an integral multiple of $100,000. Subject to the foregoing and
to the
limitations set forth in Section 2.05(d), the Borrower may
borrow, prepay and
reborrow the Loans hereunder.
35
<PAGE>
(b) The Loans made by the Lenders in any Lender Group shall
be
evidenced by a promissory note in the form attached hereto as
Exhibit G (each, a
"Note"). Each Note shall be dated the date of this Agreement,
shall be duly
executed by the Borrower, shall be payable to the Funding Agent
for the
applicable Lender Group and shall have a stated maximum
principal amount equal
to the Lender Group Limit for such Lender Group. Each Funding
Agent may, in its
discretion, enter on a schedule attached to its Note a notation
(which may be
computer generated) with respect to each Loan made hereunder by
the Lenders in
its Lender Group of (i) the date and principal amount thereof
and (ii) each
payment and repayment of principal thereof. The failure of any
Funding Agent to
make any such notation on the schedule to its Note shall not
limit or otherwise
affect the obligation of the Borrower to repay the Loans in
accordance with the
terms thereof and hereof.
(c) The Borrower may, from time to time upon at least five
Business
Days' prior written notice via electronic mail followed by
telecopy to each
Funding Agent, elect to reduce the Facility Limit, provided that
after giving
effect to any such reduction and any principal payments on such
date, the
Aggregate Principal Balance shall not exceed the Facility Limit.
Any such
reduction shall reduce each Lender Group Limit (and the
corresponding Conduit
Lending Limit(s)) hereunder ratably in accordance with their
respective Lender
Group Percentages and shall reduce each Committed Lender's
Commitment ratably
within its Lender Group in accordance with each Committed
Lender's Pro Rata
Share. Once the Facility Limit is reduced pursuant to this
Section 2.01(c) it
may not subsequently be reinstated without the consent of each
Committed Lender.
SECTION 2.02 Borrowing Procedures.
(a) Borrowing Request.
(i) The Borrower shall request a Borrowing hereunder by
submitting
to each Funding Agent a written notice, substantially in the
form of
Exhibit B (each, a "Borrowing Request") prior to (A) in the case
of Loans
which are to accrue interest by reference to the Adjusted
Eurodollar Rate,
1:00 p.m. (New York City time) on the third Business Day prior
to the date
of the proposed Borrowing (each, a "Borrowing Date") and (B)
with respect
to a Loan of any other Rate Type, 9:30 a.m. (New York City time)
on the
Business Day prior to the Borrowing Date.
(ii) Each Borrowing Request shall: (A) specify (1) the amount of
the
requested Borrowing and the allocation of such amount among the
Lender
Groups, (2) the Aggregate Principal Balance after giving effect
to such
Borrowing, (3) the desired Borrowing Date and (4) the desired
Tranche
Period(s) and allocations of the principal amount of such
Borrowing
thereto pursuant to Section 2.10 and (B) certify that, after
giving effect
to the proposed Borrowing, (1) the Percentage Factor would not
exceed the
Maximum Percentage Factor, as determined by reference to the
most recent
Portfolio Report delivered under the Servicing Agreement (which
Portfolio
Report shall contain information as of a date not more than five
Business
Days prior to the proposed Borrowing Date) and (2) in the good
faith
judgment of the Collection Agent, the Percentage Factor would
not exceed
the Maximum Percentage Factor, as determined by
36
<PAGE>
reference to the most recent information then available to the
Collection
Agent. Each Borrowing Request shall be irrevocable and binding
on the
Borrower.
(b) Conduit Lender Acceptance or Rejection. If a Conduit
Lender
shall receive a Borrowing Requ
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