AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT Dated as of July 8, 2005 by and among

Exhibit 99.1

 

EXECUTION COPY

 

AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

Dated as of July 8, 2005

by and among

THE PERSONS FROM TIME TO TIME SIGNATORY HERETO AS

ORIGINATORS,

METALDYNE CORPORATION

and

MRFC, INC.

 

 

 

 

TABLE OF CONTENTS

ARTICLE I

DEFINITIONS AND INTERPRETATION

Section 1.01	Definitions	1
Section 1.02	Rules of Construction	1

ARTICLE II

TRANSFERS OF RECEIVABLES

Section 2.01	Agreement to Transfer	1
Section 2.02	Grant of Security Interest	5
Section 2.03	Administration of Transfers	5

ARTICLE III

CONDITIONS PRECEDENT

Section 3.01	Conditions to Initial Transfer	5
Section 3.02	Conditions to all Transfers	6
Section 3.03	Conditions Precedent to the Addition of an Originator	6

ARTICLE IV

REPRESENTATIONS, WARRANTIES AND COVENANTS

Section 4.01	Originators’ Representations and Warranties		9
Section 4.02	Covenants of the Originators	15
Section 4.03	Breach of Representations, Warranties or Covenants	24

ARTICLE V

INDEMNIFICATION

Section 5.01

Indemnification

24

ARTICLE VI

COLLATERAL SECURITY

Section 6.01	Security Interest	27
Section 6.02	Other Collateral; Rights in Receivables	27
Section 6.03	Originators Remain Liable	27
Section 6.04	License for Use of Software and Other Intellectual Property	28

ARTICLE VII

MISCELLANEOUS

 

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Section 7.01	Notices			28
Section 7.02	No Waiver; Remedies			29
Section 7.03	Successors and Assigns			30
Section 7.04	Termination; Survival of Obligations			30
Section 7.05	Complete Agreement; Modification of Agreement			31
Section 7.06	Amendments and Waivers			31
Section 7.07	GOVERNING LAW; CONSENT TO JURISDICTION;
		WAIVER OF JURY TRIAL			32
Section 7.08	Counterparts			33
Section 7.09	Severability			33
Section 7.10	Section Titles			33
Section 7.11	No Setoff			33
Section 7.12	Confidentiality			33
Section 7.13	Further Assurances			34
Section 7.14	Fees and Expenses			35
Section 7.15	Addition of Originators			35

 

 

INDEX OF APPENDICES

Exhibit 2.01(a)	Form of Receivables Assignment
Exhibit 2.01(c)-1	Form of Subordinated U.S. Dollar Note
Exhibit 2.01(c)-2	Form of Subordinated Canadian Dollar Note
Exhibit 3.01(a)	Form of Officer’s Certificate to Solvency (Originator)
Exhibit 3.03(a)	Form of Additional Originator Supplement
Schedule 4.01(a)	Entity Matters
Schedule 4.01(k)	Offices and Corporate Structure
Schedule 4.01(r)	Accounts
Schedule 7.01	Notice Information
Annex X	Definitions
Annex Y	Schedule of Documents

 

 

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THIS AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (as amended, restated, supplemented or otherwise modified and in effect from time to time, this “ Purchase Agreement ”) is entered into as of July 8, 2005, by and among the Persons from time to time signatory hereto as “Originators” (each an “ Originator ” and, collectively, the “ Originators ”), Metaldyne Corporation, a Delaware corporation (“ Metaldyne ”), and MRFC, Inc., a Delaware corporation (“ MRFC ”).

RECITALS

A.         MRFC, Metaldyne and the Originators are parties to that certain Receivables Purchase Agreement, dated as of April 29, 2005 (the “ Existing Purchase Agreement ”).

B.         MRFC, Metaldyne and the Originators desire to amend and restate the Existing Purchase Agreement in accordance with the terms and conditions of this Purchase Agreement and are entering into this Purchase Agreement for such purpose.

AMENDMENT AND RESTATEMENT

NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to amend and restate the Existing Purchase Agreement as follows:

ARTICLE I

DEFINITIONS AND INTERPRETATION

Section 1.01      Definitions . Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in Annex X .

Section 1.02      Rules of Construction . For purposes of this Purchase Agreement, the rules of construction set forth in Annex X shall govern. All Appendices hereto, or expressly identified to this Purchase Agreement, are incorporated herein by reference and, taken together with this Purchase Agreement, shall constitute but a single agreement.

ARTICLE II

TRANSFERS OF RECEIVABLES

Section 2.01

Agreement to Transfer .

(a)         Receivables Transfers . Subject to the terms and conditions hereof, each Originator agrees to sell without recourse (except to the limited extent expressly and specifically provided herein) or, in the case of Metaldyne Company LLC, contribute or sell to MRFC on the Closing Date (or, if such Originator is not an Originator on the Closing Date, on such Originator’s Originator Effective Date) and on each Business Day thereafter until the Facility Termination Date (each such date, a “ Transfer Date ”), in a transaction that is intended to qualify as a “true sale” for bankruptcy law purposes and for all other purposes, all Receivables

 

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owned by it on each such Transfer Date, and MRFC agrees to purchase or acquire as a capital contribution, as the case may be, all such Receivables on each such Transfer Date. Each such Transfer shall be evidenced by a certificate of assignment substantially in the form of Exhibit 2.01(a) (each, a “ Receivables Assignment ,” and collectively, the “ Receivables Assignments ”), and each Originator and MRFC shall execute and deliver a Receivables Assignment on or before such Originator’s Originator Effective Date.

(b)         Determination of Sold Receivables . On and as of each Transfer Date, all Receivables owned by each Originator and not previously acquired by MRFC shall be identified for sale to MRFC and MRFC shall buy such Receivables, to the extent that the Sale Price to be paid by MRFC therefor does not exceed the sum of (i) the amount of cash available to MRFC for the payment thereof plus (ii) the maximum amount by which the principal amount of the Subordinated Loan may be increased without exceeding the Maximum Subordinated Loan Amount (each such Receivable identified for sale, individually, a “ Sold Receivable ” and, collectively, the “ Sold Receivables ”). In the event that, on any Transfer Date, the aggregate amount of Receivables owned by all Originators exceeds the aggregate amount of Sold Receivables on such Transfer Date, MRFC shall use cash available to it and the Subordinated Loan to purchase Receivables from all Originators other than Metaldyne Company LLC first and then use the remaining cash and availability with respect to the Subordinated Loan to purchase Receivables from Metaldyne Company LLC. The Sold Receivables will be identified by reference to the General Trial Balance of each Originator.

(c)	Payment of Purchase Price .

(i)     In consideration for each Sale of Sold Receivables hereunder, on the Transfer Date therefor MRFC shall, subject to subclause (ii) below, pay to the Originator thereof the Sale Price therefor in Dollars in immediately available funds in an amount equal to the cash available to MRFC for the payment thereof. All such payments by MRFC under this Section 2.01(c) shall be effected by means of a wire transfer on the day when due to such account or accounts as the applicable Originator may designate (or as designated in accordance with Section 2.03 ).

(ii)    To the extent that the Sale Price of Sold Receivables exceeds the amount of cash then available to MRFC, the applicable Originator hereby agrees to make a subordinated loan (each, a “ Subordinated Loan ”) to MRFC by increasing the principal amount due under the Subordinated U.S. Dollar Note or, if such Originator is a Canadian Originator, the Subordinated Canadian Dollar Note, as applicable (by notation on the grid attached thereto by Metaldyne; provided , that the failure to make any such notation or any error in such grid shall not adversely affect any Originator’s rights), in an amount up to the amount of such excess in satisfaction of the equivalent portion of the Sale Price not paid in cash; provided further , that in no event shall the aggregate amount of all Subordinated Loans (with the outstanding principal balance of any Subordinated Canadian Dollar Note being converted into U.S. Dollars based upon the Canadian Exchange Percentage) made at any time by all Originators exceed the lesser of (1) thirty percent (30%) of the aggregate Outstanding Balance of all Transferred Receivables at any time and (2) the amount that would cause MRFC’s net worth (as defined and calculated in accordance with GAAP) to be less than $25,000,000 (such lesser amount, at any

 

 

 

time, the “ Maximum Subordinated Loan Amount ”). Any such addition to the principal amount of the Subordinated Notes shall be allocated among the Originators by Metaldyne in accordance with the provisions of this Section 2.01(c) ; provided, however , that (A) additions to the principal amount of the Subordinated U.S. Dollar Note may only be made to evidence the Sale Price of Receivables denominated in U.S. Dollars and (B) additions to the principal amount of the Subordinated Canadian Dollar Note may only be made after the Canadian Originator Addition Date to evidence the Sale Price of Canadian Dollar Receivables.

(iii)   On each Originator Effective Date, MRFC shall issue to each related Originator (A) a note substantially in the form of Exhibit 2.01(c)-1 (each, a “ Subordinated U.S. Dollar Note ”) and (B) if such Originator originates or expects to originate Canadian Dollar Receivables, a note substantially in the form of Exhibit 2.01(c)-2 (each, a “ Subordinated Canadian Dollar Note ”). The aggregate principal amount of the Subordinated Notes at any time shall be equal to the difference between (x) the aggregate principal amount on the issuance thereof and each addition to the principal amount of each Subordinated Note pursuant to the terms of Section 2.01(c) as of such time, minus (y) the aggregate amount of all payments made in respect of the principal of each Subordinated Note as of such time. The Subordinated Loans shall bear interest and be payable as provided in the applicable Subordinated Notes.

(iv)   All amounts paid by MRFC with respect to the Subordinated Loans shall be allocated first to the repayment of accrued interest thereon until all such interest is paid, and then to the outstanding principal amount owing with respect to the Subordinated Loans. Subject to the provisions of this Purchase Agreement, MRFC may borrow, repay and reborrow advances of the Subordinated Loans on and after the date hereof and prior to the termination of this Purchase Agreement, subject to the terms, provisions and limitations set forth herein.

(v)    MRFC shall be obligated to repay the Subordinated Loans to the Originators only to the extent of funds available to MRFC from Collections on the Receivables and, to the extent that such payments are insufficient to pay all amounts owing with respect to the Subordinated Loans, the Originators shall not have any claim against MRFC for such amounts and no further or additional recourse shall be available against MRFC. The Subordinated Loans shall be fully subordinated to any rights of the Administrative Agent, on behalf of the Purchasers pursuant to the Transfer Agreement, and shall not evidence any rights in the Receivables.

(vi)   MRFC may offset any amount due and owing by the Originators to MRFC against any amount due and owing by MRFC to the Originators under the terms of the Subordinated Notes.

(d)         Determination of Contributed Receivables . To the extent that, on and as of any Transfer Date, Receivables owned by Metaldyne Company LLC do not constitute Sold Receivables, then Metaldyne Company LLC shall contribute such Receivables to MRFC as a capital contribution (each such contributed Receivable, individually, a “ Contributed Receivable ,” and collectively, the “ Contributed Receivables ”). Notwithstanding anything to the contrary herein, with respect to any Originator other than Metaldyne Company LLC, such Originator will distribute to Metaldyne Company LLC all Receivables that such Originator would

 

 

 

otherwise sell to MRFC hereunder, and Metaldyne Company LLC will sell or contribute, as applicable, those Receivables to MRFC in accordance with the provisions hereof and of the Transfer Agreement if and to the extent that such Originator could not be compensated by MRFC for the transfer of such Receivables in cash or advances under the Subordinated Notes payable to such Originator pursuant to Sections 2.01(b) and (c) above.

(e)         Ownership of Transferred Receivables . On and after each Transfer Date and after giving effect to the Transfers to be made on each such date, MRFC shall own the Transferred Receivables and no Originator shall take any action inconsistent with such ownership nor shall any Originator claim any ownership interest in such Transferred Receivables.

(f)          Reconstruction of General Trial Balance . If at any time any Originator fails to generate its General Trial Balance, MRFC shall have the right to reconstruct such General Trial Balance so that a determination of the Sold Receivables can be made pursuant to Section 2.01(b) . Each Originator agrees to cooperate with such reconstruction, including by delivery to MRFC, upon MRFC’s written request, of copies of all Contracts and Records.

(g)         Servicing of Receivables . So long as no Successor Servicer has assumed the responsibilities and obligations of the Servicers pursuant to Section 11.02 of the Transfer Agreement, the Master Servicer or the Sub-Servicers, as agents of the Master Servicer, shall (i) conduct the servicing, administration and collection of the Transferred Receivables and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect the Transferred Receivables, all in accordance with (A) the terms of the Transfer Agreement, (B) the Credit and Collection Policies and any other customary and prudent servicing procedures for trade receivables of a similar type and (C) all applicable laws, rules and regulations, and (ii) hold all Contracts and other documents and incidents relating to the Transferred Receivables in trust for the benefit of MRFC, as the owner thereof, and for the sole purpose of facilitating the servicing of the Transferred Receivables in accordance with the terms of the Transfer Agreement. MRFC hereby appoints each of the Originators as its agent to enforce MRFC’s rights and interests in, to and under the Receivables. To the extent permitted by applicable law, each Originator hereby grants to Master Servicer and any Sub-Servicer, and at any time following the designation of a Servicer other than Metaldyne, any Originator or MRFC, to the Administrative Agent, an irrevocable power of attorney to take in the Originator’s name and on behalf of the Originator any and all steps necessary or desirable, in the reasonable determination of any Servicer or the Administrative Agent, as the case may be, to collect all amounts due under any and all Receivables in the manner described in above in clause (i) of the first sentence of this subsection (g), including, without limitation, endorsing each Originator’s name on checks and other instruments representing Collections and enforcing such Receivables and the related Contracts.

(h)         Receivables Situated in the Province of Quebec . Notwithstanding anything herein to the contrary, the following provisions of this Section 2.01(h) shall apply only from and after the Canadian Originator Addition Date: With respect to the Canadian Dollar Receivables, in order to facilitate the registration in the Register of Personal and Movable Real Rights (Quebec) of the transfer and assignment of the undivided percentage ownership interests in the Canadian Dollar Receivables contemplated by this Purchase Agreement, each

 

 

 

Originator hereby sells, assigns, transfers and conveys to MRFC any Canadian Dollar Receivables situated in the Province of Quebec; title to any such Transferred Receivables shall pass to MRFC upon each relevant Transfer as contemplated in this Purchase Agreement.

Section 2.02      Grant of Security Interest . The parties hereto intend that each Transfer shall (a) constitute a purchase and sale or capital contribution, as applicable, and not a grant of a security interest in the Transferred Receivables to secure debt or a loan and (b) qualify as a “true sale” for bankruptcy law purposes and all other purposes. Notwithstanding the foregoing, in addition to and not in derogation of any rights now or hereafter acquired by MRFC under Section 2.01 hereof, in the event that, despite the parties’ express intention, the Transferred Receivables are construed to constitute property of the Originators, then this Purchase Agreement shall be deemed to constitute a security agreement under applicable law and that each Originator shall be deemed to have granted, and each Originator does hereby grant, to MRFC a continuing security interest in all of such Originator’s right, title and interest in, to and under the Transferred Receivables (which shall be deemed to include, for purposes of this section, all Receivables that were sold, contributed, distributed or purported to be sold, contributed or distributed under Section 2.01 of this Agreement) to secure the obligations of such Originator to MRFC hereunder (including, if and to the extent that any Transfer is re-characterized as a transfer for security, the repayment of a loan deemed to have been made by MRFC in the amount of the Sale Price with respect thereto and which secures MRFC’s right to receive all Collections of the Transferred Receivables as otherwise contemplated under this Purchase Agreement).

Section 2.03      Administration of Transfers . Metaldyne shall be responsible, in its sole discretion but in accordance with Section 2.01(c) , for allocating among the Originators the payment of the Sale Price for Transferred Receivables either in the form of cash received from MRFC or as an addition to the principal amount of the applicable Subordinated Note. MRFC shall be entitled to pay all amounts in respect of the Sale Price of Transferred Receivables to an account of Metaldyne for allocation by Metaldyne to the Originators, and each of the Originators hereby appoints Metaldyne as its agent for the purposes of receiving such payments and making such allocations and hereby authorizes MRFC to make all payments due to such Originator directly to, or as directed by, Metaldyne. Metaldyne hereby accepts and agrees to such appointment. All payments under this Purchase Agreement shall be made not later than 3:00 p.m. (New York City time) on the date specified therefor in U.S. Dollars in same day funds or by check, as Metaldyne shall elect and to the bank account designated in writing by Metaldyne to MRFC.

ARTICLE III

CONDITIONS PRECEDENT

Section 3.01      Conditions to Initial Transfer . The initial Transfer hereunder shall be subject to satisfaction of each of the following conditions precedent (any one or more of which may be waived in writing by each of MRFC and the Administrative Agent):

(a)         Purchase Agreement; Other Documents . This Purchase Agreement or counterparts hereof shall have been duly executed by, and delivered to, each Origina

 

 

 

tor and MRFC, and MRFC shall have received such documents, instruments, agreements and legal opinions as MRFC shall request in connection with the transactions contemplated by this Purchase Agreement, including all those identified in the Schedule of Documents, each in form and substance satisfactory to MRFC.

(b)         Compliance with Laws . Each Originator shall be in compliance with all applicable foreign, federal, state and local laws and regulations, except to the extent that any failure to so comply would not have a Material Adverse Effect.

(c)         Transfer Agreement Conditions . Each of those conditions precedent set forth in Sections 3.01 of the Transfer Agreement shall have been satisfied or waived in writing as provided therein.

Section 3.02      Conditions to all Transfers . Each Transfer hereunder (including the initial Transfer) shall be subject to satisfaction of the following further conditions precedent as of the Transfer Date therefor:

(a)        the representations and warranties of each Originator contained herein or in any other Related Document shall, in each case, be true and correct in all material respects as of such Transfer Date, both before and after giving effect to such Transfer and to the application of the Sale Price therefor (and, in the case of any such representation or warranty in a Related Document other than this Agreement or the Transfer Agreement, after giving effect to any applicable grace period that may be expressly provided with respect to such representation or warranty in such other Related Document), except to the extent that any such representation or warranty expressly relates to an earlier date and except for changes therein expressly permitted by this Purchase Agreement; and

(b)        no Potential Termination Event or Termination Event shall have occurred and be continuing or would result after giving effect to such Transfer or the application of the Sale Price therefor.

The acceptance by each Originator of the Sale Price for any Sold Receivables on any Transfer Date or the distribution or contribution by each Originator or Metaldyne Company LLC of any Contributed Receivables on any Transfer Date shall be deemed to constitute, as of any such Transfer Date, a representation and warranty by such Originator or Metaldyne Company LLC (as applicable) that the conditions in this Section 3.02 have been satisfied. Upon any such acceptance, distribution or contribution, all right, title and interest, legal and equitable, in and to the Transferred Receivables sold, distributed or contributed on such Transfer Date shall be vested absolutely in MRFC, whether or not such conditions were in fact so satisfied.

Section 3.03      Conditions Precedent to the Addition of an Originator . The obligation of MRFC to purchase Receivables hereunder from a Subsidiary of Metaldyne requested to be an additional Originator pursuant to Section 7.15 is subject to the conditions precedent that MRFC shall have received on or before the date designated for the addition of

 

 

 

such Originator (the “ Originator Addition Date ”) and in form and substance satisfactory to MRFC and the Administrative Agent:

(a)         Additional Originator Supplement . A supplement to this Purchase Agreement substantially in the form of Exhibit 3.03(a) attached hereto (each, an “ Additional Originator Supplement ”), with a copy for the Administrative Agent, duly executed and delivered by such Originator;

(b)         Secretary’s Certificate . A certificate of the Secretary or an Assistant Secretary of such Originator, dated the related Originator Addition Date, and certifying (i) that attached thereto is a true and complete copy of the Charter Documents of such Originator, as in effect on the Originator Addition Date and at all times since a date prior to the date of the resolutions described in clause (ii) below, (ii) that attached thereto is a true and complete copy of the resolutions, in form and substance reasonably satisfactory to MRFC, of the board of directors of such Originator or committees thereof authorizing the execution, delivery and performance of this Purchase Agreement and the other Related Documents to which it is a party and the transactions contemplated hereby and thereby, and that such resolutions have not been amended, modified, revoked or rescinded and are in full force and effect, (iii) that the Charter Documents have not been amended since the date of the last amendment thereto furnished pursuant to subsection (d) below and are true, complete and correct, and (iv) as to the incumbency and specimen signature of each officer executing the Additional Originator Supplement and any other Related Documents or any other document delivered in connection therewith on behalf of such Originator (on which certificates MRFC may conclusively rely until such time as MRFC shall receive from such Originator a revised certificate with respect to such Originator meeting the requirements of this clause (b) );

(c)         Officer’s Certificate . An Officer’s Certificate of Metaldyne, dated the related Originator Addition Date, and certifying such Originator is in the same or a related line of business as the existing Originators as of the related Originator Addition Date;

(d)         Charter Documents . The Charter Documents, including all amendments thereto, of such Originator, certified as of a recent date by the Secretary of State or other appropriate authority of the state of incorporation or formation, as the case may be;

(e)         Good Standing Certificates . Certificates of compliance, of status or of good standing, dated as of a recent date, from the Secretary of State or other appropriate authority of such jurisdiction, with respect to such Originator in each state where the ownership, lease or operation of property or the conduct of business requires it to qualify as a foreign corporation or limited liability company, as the case may be, except where the failure to so qualify would not have a Material Adverse Effect;

 

 

 

 

 

(f)          Consents, Licenses, Approvals, Etc . An Officer’s Certificate dated the related Originator Addition Date of such Originator either (i) attaching copies of all consents (including, without limitation, consents under loan agreements and indentures to which any Originator or its Affiliates are parties), licenses and approvals required in connection with the execution, delivery and performance by such Originator of the Additional Originator Supplement and the validity and enforceability of the Additional Originator Supplement against such Originator, and such consents, licenses and approvals shall be in full force and effect or (ii) stating that no such consents, licenses and approvals are so required;

(g)         No Litigation . Confirmation that there is no pending or, to its knowledge after due inquiry, threatened action or proceeding affecting such Originator or any of its Subsidiaries before any Governmental Authority that could reasonably be expected to have a Material Adverse Effect;

(h)         Lockboxes . A Lockbox Account with respect to Receivables to be transferred by such Originator shall have been established in the name of MRFC, each invoice issued to an Obligor on and after the related Originator Addition Date shall indicate that payments in respect of its Receivable shall be made by such Obligor to a Lockbox Account or by wire transfer or other electronic payment to a Lockbox Account or a Concentration Account and the Originator shall have delivered with respect to each Lockbox Account an Account Control Agreement signed by MRFC, such Originator, the Administrative Agent and the applicable Lockbox Account Bank;

(i)          UCC Certificate; UCC Financing Statements . Executed copies of such proper financing statements (or other similar instruments), filed and recorded at such Originator’s expense prior to the related Originator Addition Date, naming (i) such Originator as the seller and MRFC as the purchaser of the Receivables, and (ii) such Originator as the debtor and MRFC as a secured party with respect to the Originator Collateral, in each case in proper form for filing in each jurisdiction in which MRFC (or any of its assignees) deems it necessary or desirable to perfect MRFC’s ownership interest in all Receivables and Originator Collateral under the UCC or any comparable law of such jurisdiction;

(j)          Lien Searches . Written search reports, listing all effective financing statements (or other similar instruments) that name such Originator as debtor or assignor and that are filed in the jurisdictions in which filings were made pursuant to clause (i) above and in any other jurisdictions that MRFC (or any of its assignees) determines are necessary or appropriate, together with copies of such financing statements (none of which, except for those described in clause (i) above, shall cover any Receivables or Originator Collateral unless related to Permitted Originator Encumbrances), and tax and judgment lien searches showing no liens that are not permitted by the Related Documents;

(k)         List of Obligors . A microfiche, typed or printed list or other tangible evidence reasonably acceptable to MRFC (and its assigns) showing, as of a date ac

 

 

 

ceptable to MRFC prior to the related Originator Addition Date, the Obligors whose Receivables are to be transferred to MRFC and the balance of the Receivables with respect to each such Obligor as of such date;

(l)          Back-up Servicing Arrangements . Evidence (which evidence may be in the form of an Officer’s Certificate) that such Originator maintains disaster recovery systems and back-up computer and other information management systems that, in MRFC’s reasonable judgment, are sufficient to protect such Originator’s business against material interruption or loss or destruction of its primary computer and information management systems;

(m)        Systems . Evidence, reasonably satisfactory to MRFC and the Administrative Agent, that such additional Originator’s systems, procedures and record keeping relating to the Receivables remain in all material respects sufficient and satisfactory in order to permit the purchase and administration of the Receivables in accordance with the terms and intent of this Purchase Agreement;

(n)         Opinions . MRFC shall have received (i) legal opinions on behalf of such Originator as to general corporate matters (including an opinion as to the perfection and priority of MRFC’s interest in the Receivables) and (ii) a certificate from an Authorized Officer of such Originator stating that the Specified Bankruptcy Opinion Provisions are also true and correct as to such Originator as of the related Originator Addition Date, all in form and substance reasonably satisfactory to the Administrative Agent;

(o)         Subordinated Notes . Subordinated Notes duly executed and delivered by MRFC in favor of such Originator in accordance with Section 2.01(c)(iii) ; and

(p)         Other . Such other approvals or documents as MRFC (or any of its assignees) may reasonably request from such additional Originator.

ARTICLE IV

REPRESENTATIONS, WARRANTIES AND COVENANTS

Section 4.01      Originators’ Representations and Warranties . To induce MRFC to purchase the Sold Receivables and to acquire the Contributed Receivables, each Originator severally represents and warrants to MRFC as of the related Originator Effective Date and on each Business Day on which Receivables are sold or contributed hereunder by it with respect to itself (each of which shall survive the execution and delivery of this Purchase Agreement):

(a)         Corporate Existence and Power . Such Originator is a corporation or limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or formation as set forth on Schedule 4.01(a) attached hereto, is a “registered organization” (as defined in the UCC) in such jurisdiction and is not organized under the laws of any other jurisdictions and has all corporate or limited liability company power and all material governmental licenses, authorizations, permits, consents and approvals required to carry on its business in

 

 

 

each jurisdiction in which its business is now conducted, except where the failure to obtain such licenses, authorizations, consents and approvals would not have a Material Adverse Effect. Such Originator is duly qualified to do business in, and is in good standing in, every other jurisdiction in which the nature of its business requires it to be so qualified, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect. Subject to specific representations set forth herein regarding ERISA, tax and other laws, such Originator is in compliance with all applicable provisions of law, except where the failure to so comply, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Such Originator is in compliance with its Charter Documents.

(b)         Organizational and Governmental Authorization; Contravention . The execution, delivery and performance (including duties, rights and remedies thereunder) by such Originator of the Related Documents to which it is a party, and the creation and perfection of all Liens and ownership interests provided for herein and therein (i) are within such Originator’s corporate or limited liability company powers, (ii) have been duly authorized by all necessary corporate or limited liability company action, (iii) require no action by or in respect of, or filing with, any Governmental Authority or official thereof (or any other Person except for the filing of UCC financing statements or similar filings under applicable law as required by this Purchase Agreement, as have been taken or filed or for which the failure to obtain could not reasonably be expected to result in a Material Adverse Effect and, with respect to filings other than UCC financing statements or similar filings under applicable law, filings where the failure to file will not have a Material Adverse Effect), (iv) do not contravene, or constitute a default under, any provision of applicable law, rule or regulation or order or decree of any court or Governmental Authority or of the Charter Documents of such Originator, (v) do not contravene or constitute a default under or otherwise accelerate or permit the acceleration of any performance required by any agreement or other instrument binding upon such Originator except where such contravention or default would not have a Material Adverse Effect, or (vi) result in the creation or imposition of any Adverse Claim (other than Permitted Originator Encumbrances) on the assets of such Originator or any of its Affiliates.

(c)         Valid Sale; Binding Effect . Each transfer of Receivables by an Originator hereunder shall constitute a valid conveyance and assignment by the applicable Originator to MRFC, enforceable against creditors of, and purchasers from, such Originator. Each of the Related Documents to which such Originator is a party will constitute the legal, valid and binding obligation of such Originator, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws affecting the rights of creditors and general equitable principles (whether considered in a proceeding at law or in equity) (collectively, the “ Enforceability Exceptions ”). On or prior to the Closing Date, each of the Related Documents to which such Originator is a party have been duly executed and delivered by such Originator.

 

 

 

 

 

(d)         Quality of Title . Immediately preceding each Transfer Date, such Originator was the sole owner of all of its Receivables, free and clear of all Adverse Claims (other than Permitted Originator Encumbrances). On or prior to the related Originator Effective Date and on or prior to each Transfer Date, (i) all financing statements and other documents required to be recorded or filed in order to perfect and protect the interest of MRFC in, to and under the Receivables (other than the portion thereof consisting of deposit accounts not subject to Account Control Agreements) against all creditors of and purchasers from the applicable Originator will have been duly filed in each filing office necessary for such purpose and all filing fees and taxes, if any, payable in connection with such filings shall have been paid in full, and (ii) MRFC will either acquire (A) valid title to and the sole record and beneficial ownership in, or (B) a first priority perfected security interest in, each such Receivable purchased, assigned or otherwise acquired on such date, in each case free and clear of any Adverse Claim (other than Permitted Originator Encumbrances) or restrictions on transferability. None of the Originator Collateral has been sold, assigned or otherwise disposed of other than pursuant hereto and the Transfer Agreement and there are no Liens (other than Permitted Originator Encumbrances) upon or with respect to the Originator Collateral. Each Originator has rights in and the power to transfer each item of the Originator Collateral upon which it purports to grant a Lien hereunder, and each Originator has received all assignments, bills of sale and other documents, and has duly effected all recordings, filings and other actions necessary to establish, protect and perfect such Originator’s right, title and interest in and to the Receivables and the Originator Collateral. The Liens granted to MRFC pursuant to Section 6.01 will at all times be fully perfected first priority Liens in and to the Originator Collateral, subject only to Permitted Originator Encumbrances.

(e)         Material Adverse Effect . Commencing on the last day of the 2004 fiscal year of Metaldyne and ending on the Closing Date, no event has occurred that alone or together with other events could reasonably be expected to have a Material Adverse Effect.

(f)          Accuracy of Information . Each Originator has disclosed all agreements, instruments and corporate or other restrictions to which it is subject, and all other matters known to any of them that individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No reports, financial statements, certificates or other information furnished by or on behalf of any Originator to MRFC, the Administrative Agent or any Purchaser in connection with the negotiation of this Purchase Agreement or any other Related Document or delivered hereunder or thereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information the Originators represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time such projections were prepared.

 

 

 

 

 

(g)         Tax Status . Each Originator has timely filed or caused to be filed all tax returns and reports required to have been filed and has paid or caused to be paid all taxes and charges required to have been paid by it, except (i) charges or other amounts being contested in accordance with Section 4.02(q) or (ii) to the extent hat the failure to do so could not reasonably be expected to result in a Material Adverse Effect.

(h)         Action, Suits . There is no Litigation now pending or, to the knowledge of such Originator, threatened against or affecting such Originator or any Affiliate of such Originator, or any property or rights of such Originator or any Affiliate of such Originator, (i) as to which there is a reasonable possibility of an adverse determination and which if adversely determined, could individually or in the aggregate result in a Material Adverse Effect, or if adversely determined could reasonably be expected to materially adversely affect the transactions contemplated by the Related Documents, (ii) challenges such Originator’s right or power to enter into or perform any of its obligations under the Related Documents to which it is a party or the validity or enforceability of any Related Document or any action taken thereunder or (iii) seeks to prevent the transfer, sale, pledge or contribution of any Receivable or the consummation of any of the transactions contemplated under this Purchase Agreement or the other Related Documents.

(i)          Place of Business . The offices where such Originator keeps all of its Records are located at the addresses described on Schedule 4.01(k) hereof, or such other locations notified to MRFC in accordance with this Purchase Agreement in jurisdictions where all action required by the terms of this Purchase Agreement has been taken and completed.

(j)          Solvency . Both before and after giving effect to (i) the transactions contemplated by the Related Documents and (ii) the payment and accrual of all transaction costs in connection with the foregoing, such Originator is and will be Solvent. To the knowledge of such Originator, no event of the type described in Section 9.01(c) or 9.01(d) of the Transfer Agreement has been commenced or threatened against any Originator or any of its Subsidiaries.

(k)         Tradenames, Etc . (i) Such Originator’s chief executive office is located at the address set forth on Schedule 4.01(k); (ii) such Originator has, within the last five (5) years, operated only under the trade names identified in Schedule 4.01(k) ; and (iii) within the last five (5) years, such Originator has not changed its name, merged with or into or consolidated with any other Person or been the subject of any proceeding under Title 11, United States Code (Bankruptcy), except as disclosed in Schedule 4.01(k) . All of the issued and outstanding Stock of each Originator is owned, directly or indirectly, by Metaldyne.

(l)          Nature of Receivables . Each Receivable sold by such Originator and included in the calculation of the Gross Pool Availability in fact satisfies at such time the definition of “Eligible Receivable”. None of the Originators has any knowledge of any fact (including any defaults by the Obligor thereunder on any other Receivable)

 

 

 

that would cause it or should have caused it to reasonably expect that any payments on such sold Receivable will not be paid in full when due (other than any unexpired and unexercised volume or pricing discounts or rebates to which the Obligor thereon may be entitled) or to expect any other Material Adverse Effect.

(m)        Credit and Collection Policies . Since March 14, 2003, there have been no material changes in the Credit and Collection Policies other than as permitted hereunder. Since such date, no material adverse change has occurred in the overall rate of collection of the Receivables sold by it.

(n)         Collections and Servicing . Since January 2, 2005, there has been no material adverse change in the ability of such Originator to service and collect its Receivables.

(o)         Binding Effect of Receivables and Contract . The indebtedness represented by each Receivable and related Contract sold by it constitutes a legal, valid and binding obligation of the related Obligor, enforceable against the related Obligor, subject to the Enforceability Exceptions.

(p)         Investment Company Act Exemptions; Government Regulation . Such Originator is not, and is not controlled by, an “investment company” within the meaning of the Investment Company Act or is exempt from all provisions of the Investment Company Act. The purchase or acquisition of the Receivables by MRFC hereunder, the application of the Sale Price therefor and the consummation of the transactions contemplated by this Purchase Agreement and the other Related Documents will not violate any provision of any such statute or any rule, regulation or order issued by the Securities and Exchange Commission.

(q)         ERISA . To the extent applicable, such Originator and its ERISA Affiliates are in compliance in all material respects with ERISA and the provisions of the IRC that are applicable to ERISA except to the extent such non-compliance could not reasonably be expected to have a Material Adverse Effect, and no Lien exists in favor of the PBGC on any of the Receivables. There are no pending or, to the knowledge of such Originator, threatened claims (other than claims for benefits in the normal course), sanctions, actions or lawsuits, asserted or instituted against such Plan of such Originator or its ERISA Affiliates or any Person as fiduciary or sponsor of any such Plan of such Originator or its ERISA Affiliates that could reasonably be expected to have a Material Adverse Effect. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to have a Material Adverse Effect.

(r)          Deposit Accounts and Securities Accounts . Schedule 4.01(r) lists all banks and other financial institutions at which such Originator maintains deposit accounts (within the meaning of the UCC) as of the Closing Date into which Collections are deposited, including any Lockbox Accounts and the Concentration Accounts, and

 

 

 

such schedule correctly identifies the name, address and telephone number of each depository, the name in which the account is held, a description of the purpose of the account, and the complete account number therefor. All Obligors have been instructed to make payment to a Lockbox Account and only Collections are deposited into the Lockbox Accounts and the Concentration Accounts. In connection with the transfer of the Receivables hereunder, including the Collections related thereto, such Originator has transferred to, and hereby does convey to, MRFC ownership of all deposit accounts into which Collections are deposited. The Originator has delivered to the Administrative Agent one or more fully executed agreements pursuant to which each Lockbox Account Bank, Originator Account Bank and Concentration Account Bank has agreed to comply with all instructions originated by the Administrative Agent directing the disposition of funds in the Lockbox Accounts, Originator Account and Concentration Accounts, respectively, without further consent by any other Person. None of the Accounts is in the name of any Person other than the Originator or the Administrative Agent, and the Originator has not consent