Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 5 dated as of
February 13, 2009 (this “ Amendment ”) to
the Receivables Transfer Agreement dated as of June 6, 2002,
as amended June 3, 2005, July 5, 2005, December 31,
2007, and February 22, 2008 (as amended or modified and in
effect from time to time, the “ Agreement ”), by
and among TSPC, INC., as Transferor (the “ Transferor
”), TRIMAS CORPORATION, individually, as Collection Agent,
TRIMAS COMPANY, LLC, individually, as Guarantor under the Limited
Guaranty set forth in Article IX thereto, the several
commercial paper conduits identified on Schedule B thereto and
their respective permitted successors and assigns (the “
CP Conduit Purchasers ”), the several financial
institutions identified on Schedule B thereto as “Committed
Purchasers” and their respective permitted successors and
assigns (the “ Committed Purchasers ”), the
agent bank of each CP Conduit Purchaser and Committed Purchaser on
Schedule B thereto and its permitted successor and assign (the
“ Funding Agents ”), and JPMORGAN CHASE BANK,
N.A., f/k/a JPMorgan Chase Bank, as Administrative Agent for the
benefit of the CP Conduit Purchasers, the Committed Purchasers and
the Funding Agents (the “ Administrative Agent
”).
In consideration of the mutual
agreements herein contained and other good and valuable
consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. Defined
Terms . Capitalized terms used but not otherwise
defined herein will have the meanings set forth in the
Agreement. The parties hereto agree that this Amendment shall
constitute a Transaction Document for all purposes of the
Agreement.
SECTION 2.
Amendments to Agreement .
(a) The
definition of “Applicable Margin” set forth in Schedule
A to the Agreement is hereby amended and restated in its entirety
to read as follows:
“ Applicable Margin
” shall mean 6.50%.
(b) The
definition of “Commitment Expiry Date” set forth in
Schedule A to the Agreement is hereby amended by deleting
“February 20, 2009” and inserting in place thereof
“February 12, 2010”.
(c) The
definition of “Base Rate” set forth in Schedule A to
the Agreement is hereby amended in its entirety to read as
follows:
“ Base Rate ” or
“ BR ” shall mean, for any date of
determination, a rate per annum equal to the greatest of
(i) the prime rate of interest announced by the Administrative
Agent from time to time, changing when and as said prime rate
changes (such rate not necessarily being the lowest or best rate
charged by the Administrative Agent), (ii) the sum of
(a) 1.50% and (b) the
Federal Funds Rate for such date and
(iii) the sum of (a) the Applicable Margin and
(b) the Eurodollar Rate.
(d) The
definition of “Concentration Factor” set forth in
Schedule A to the Agreement is hereby amended and restated in its
entirety to read as follows:
“ Concentration Factor ” shall mean, as of any
date of determination, with respect to any Designated Obligor a
percentage equal to the following:
(i) with respect to Receivables
of any Obligor with short-term or long-term ratings of at least A-1
or A by S&P, respectively, and at least P-1 or A2 by
Moody’s, respectively, 8.0%;
(ii) with respect to
Receivables of any Obligor with short-term or long-term ratings of
at least A-2 or BBB by S&P, respectively, and at least P-2 or
Baa2 by Moody’s, respectively, 4.0% (and not qualified under
clause (i) above);
(iii) with respect to
Receivables of any Obligor with short-term or long-term ratings at
or below A-3 or BBB- by S&P, respectively, and at or below P-3
or Baa3 by Moody’s, respectively, 2.4% (and not qualified
under clause (i) or (ii) above); and
(iv) with respect to Receivables of any Obligor with no
short-term or long-term ratings by S&P and Moody’s,
2.4%
The Concentration Factor for Obligors with split ratings shall be
determined based upon the lower of the two ratings.
(e) The
definition of “Dilution Horizon Ratio” set forth in
Schedule A to the Agreement is hereby amended and restated in its
entirety to read as follows:
“ Dilution Horizon Ratio ” shall mean, on any
day, a number equal to a fraction, the numerator of which is the
aggregate balance of all Receivables which arose during the three
(3) Settlement Periods then most recently ended and the
denominator of which is the Net Receivables Balance as of the end
of the preceding Settlement Period.
(f)
The definition of “Dilution Reserve Ratio” set forth in
Schedule A to the Agreement is hereby amended by deleting “C
= 2.0” and inserting in place thereof “C =
2.5”.
(g) The
definition of “Loss and Dilution Reserve Ratio” set
forth in Schedule A to the Agreement is hereby amended and restated
in its entirety to read as follows:
“ Loss and Dilution Reserve
Ratio ” shall mean, on any day, without duplication, the
sum of the Loss Reserve Ratio, the Dilution Reserve Ratio and the
Supplemental Audit Reserve.
(h) The
definition of “Loss Reserve Ratio” set forth in
Schedule A to the Agreement is hereby amended deleting the number
“2” and inserting in place thereof
“2.5”.
(i)
The following definitions are hereby added to the Agreement in
appropriate alphabetical order:
“ Accounting Based
Consolidation Event ” means the consolidation, for
financial and/or regulatory accounting purposes, of all or any
portion of the assets and liabilities of the CP Conduit Purchasers
that are subject to this Agreement or any other Transaction
Document with all or any portion of the assets and liabilities of
an Affected Entity. An Accounting Based Consolidation Event
shall be deemed to occur on the date that any such consolidation of
the assets and liabilities of the CP Conduit Purchasers shall occur
as acknowledged in writing by any Affected Entity.
“ Affected Entity
” means (i) any CP Conduit Purchaser or Committed
Purchaser, (ii) any insurance company, bank or other funding
entity providing liquidity, credit enhancement or back-up purchase
support or facilities to the CP Conduit Purchasers, (iii) any
agent, administrator or manager of the CP Conduit Purchasers, or
(iv) any bank holding company in respect of any of the
foregoing.
“ Delinquency Ratio
” shall mean, on any day, a fraction, the numerator of which
is the aggregate amount of Delinquent Receivables as of the end of
the preceding Settlement Period and the denominator of which is the
Outstanding Balance of all Receivables.
“ Supplemental Audit
” shall have the meaning specified in
Section 5.01(d) of the Receivables Transfer
Agreement.
“ Supplemental Audit
Date ” shall mean August 31, 2009.
“ Supplemental Audit
Reserve ” shall mean (i) prior to the date of the
completion of the Supplemental Audit, 0.0% and (ii) from and
after the date of the completion of the Supplemental Audit, up to
10.0%, provided , however ; the Administrative Agent,
in its sole discretion, may, by written notice to the Transferor
decrease the Supplemental Audit Reserve. The Supplemental
Audit Reserve shall not be duplicative of other reserves or
eligibility criteria that are otherwise addressed or excluded
through such other reserves or eligibility criteria.
(j)
Section 2.02(a) of the Receivables Transfer Agreement is
hereby amended by amending and restating the third sentence of the
second paragraph thereof to read as follows:
“Each Incremental Transfer
shall be subject to the condition precedent that the Collection
Agent shall have delivered to the Administrative Agent, in form and
substance satisfactory to the Administrative Agent, a Deposit
Report dated within one (1) Business Day prior to the desired
date of such Incremental Transfer, together with such other
additional information as the Administrative Agent may reasonably
request.”
(k)
Section 2.12(a) of the Agreement is hereby amended and
restated in its entirety to read as follows:
“(a) Deposit
Report. The Collection Agent shall deliver to the
Administrative Agent and the Transferor, no later than
4:00 p.m., New York City time, on each Business Day a written
report substantially in the form attached hereto as
Exhibit D-1 (the “ Deposit Report ”)
setting forth total Collections received and Receivables Originated
on the previous Business Day, Eligible Receivables balance as of
the close of business on the previous Business Day, and such other
information as the Administrative Agent may reasonably
request. The Deposit Report and such daily report may be
delivered in an electronic format mutually agreed upon by the
Collection Agent and each Funding Agent, or pending such agreement,
by facsimile.”
(l)
Section 2.23(d) of the Agreement is hereby amended and
restated in its entirety to read as follows:
“(d) If the Transferor
is required to pay any additional amount to any Committed Purchaser
pursuant to Sections 2.21, 2.22, or 2.26, then such Committed
Purchaser shall use reasonable efforts (which shall not require
such Committed Purchaser to incur an unreimbursed loss or
unreimbursed cost or expense or otherwise take any action
inconsistent with its internal policies or legal or regulatory
restrictions or suffer any disadvantage or burden reasonably deemed
by it to be significant) (A) to file any certificate or
document reasonably requested in writing by the Transferor or
(B) to assign its rights and delegate and transfer its
obligations hereunder to another of its offices, branches or
affiliates, if such filing or assignment would reduce amounts
payable pursuant to Sections 2.21, 2.22, or 2.26, as the case may
be, in the future.”
(m)
Article II of the Agreement is hereby amended by inserting the
following new Section 2.26:
“SECTION 2.26
Accounting Based Consolidation Event . (a) If an
Accounting Based Consolidation Event shall at any time occur then,
upon demand by the Administrative Agent, Transferor shall pay to
the Administrative Agent, for the benefit of the relevant Affected
Entity, such amounts as such Affected Entity reasonably determines
will compensate or reimburse such Affected Entity for any resulting
(i) fee, expense or increased cost charged to, incurred or
otherwise suffered by such Affected Entity, (ii) reduction
in the rate of return on such Affected Entity’s capital
or reduction in the amount of any sum received or receivable by
such Affected Entity or (iii) internal capital charge or other
imputed cost determined by such Affected Entity to be allocable to
Seller or the transactions contemplated in this Agreement in
connection therewith. Amounts under this
Section 2.26 may be demanded at
any time without regard to the
timing of issuance of any financial statement by the CP Conduit
Purchasers or by any Affected Entity.”
(n)
Section 5.01(d) of the Agreement is hereby amended by
inserting the following language immediately after the last
sentence thereof:
“In addition to the foregoing,
at any time during the two month period preceding the Supplemental
Audit Date and with reasonable prior notice to the Transferor, the
Transferor will, and will cause each Seller, during regular
business hours, to permit representatives, auditors and other
independent contractors of the Administrative Agent to perform an
audit of the Receivables, the Sellers and their operations and
systems, including permitting such representatives, auditors, and
other independent contractors (i) to examine and make copies
of and abstracts from all Records, and (ii) to visit the
offices and properties of the Transferor and the Sellers, to the
extent determined by and in the manner specified by the
Administrative Agent in its reasonable discretion for the purpose
of producing an audit report for use by the Committed Lenders (the
“ Supplemental Audit ”). The Transferor
agrees to pay all reasonable out-of-pocket expenses incurred by the
Administrative Agent (including, without limitation, the cost of
any auditors or other independent contractor) in connection with
the Supplemental Audit and the Administrative Agent shall notify
the Transferor of the date of the completion of the Supplemental
Audit.”
(o) The
text of Section 6.07(a) of the Agreement is hereby
amended by deleting the language “(iii) the Collection
Agent fails to deliver any Deposit Report within two
(2) Business Days” and inserting in place
thereof”(iii) the Collection Agent fails to deliver any
Deposit Report within one (1) Business Day”.
(p)
Section 7.01(p) of the Agreement is hereby amended by
deleting the “.” and inserting in place thereof
“; or”.:
(q) The
following new Section 7.01(q) is hereby inserted
immediately after Section 7.01(p) of the
Agreement:
“(q)
the average Delinquency Ratio for the three preceding Settlement
Periods exceeds 10.00%.”
(r)
Section 10.06(d) of the Agreement is hereby amended by
inserting the following new Subsection 10.06(d)(iv):
“(iv) Notwithstanding
any other provision of this Agreement to the contrary, any CP
Conduit Purchaser or Committed Purchaser may at any time pledge or
grant a security
interest in all or any portion of
its rights (including, without limitation, any Transferred
Interest and any rights to payment of Net Investment, Discount and
any other amounts) under this Agreement to secure obligations of
such CP Conduit Purchaser or Committed Purchaser to a Federal
Reserve Bank, and this Section shall not apply to any such
pledge or grant of a security interest; provided that no such
pledge or grant of a security interest shall release a CP Conduit
Purchaser or Committed Purchaser from any of its obligations
hereunder, or substitute any such pledgee or grantee for such CP
Conduit Purchaser or Committed Purchaser as a party
hereto.”
(s)
Section 10.10 (a) of the Agreement is hereby amended by
inserting after the second sentence thereof the following
language:
“If, notwithstanding the
intention of the parties expressed above, any sale or transfer by
the Transferor hereunder shall be characterized as a secured loan
and not a sale or such sale shall for any reason be ineffective or
unenforceable, the Transferor represents and warrants that each
remittance of Collections to the Administrative Agent, the CP
Conduit Purchasers or the Committed Purchasers hereunder will have
been (i) in payment of a debt incurred in the ordinary course
of business or financial
