EXHIBIT 10.2
================================================================================
RECEIVABLES PURCHASE AGREEMENT
among
MASCOTECH, INC.,
THE SELLERS NAMED HEREIN
as Sellers
and
MTSPC, INC.
as Purchaser
Dated as of November 28, 2000
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Definitions.............................................1
SECTION 1.02. Other Terms.............................................1
SECTION 1.03. Computation of Time Periods.............................1
ARTICLE II
Purchase, Conveyance and Servicing of Receivables
SECTION 2.01. Sales...................................................2
SECTION 2.02. Servicing of Receivables................................3
ARTICLE III
Consideration and Payment; Reporting
SECTION 3.01. Purchase Price..........................................4
SECTION 3.02. Payment of Purchase Price...............................4
SECTION 3.03. Reports.................................................6
SECTION 3.04. Transfer of Records.....................................6
SECTION 3.05. Payments and Computations...............................7
ARTICLE IV
Representations and Warranties
SECTION 4.01. Sellers' Representations and Warranties
SECTION 4.02. Reaffirmation of Representations and Warranties
by the Sellers; Notice of Breach.....................10
ARTICLE V
Covenants of the Sellers
SECTION 5.01. Covenants of the Sellers...............................11
-i-
<PAGE>
Page
ARTICLE VI
Repurchase Obligation
SECTION 6.01. Mandatory Repurchase...................................17
SECTION 6.02. Dilutions, Etc.........................................18
ARTICLE VII
Conditions Precedent
SECTION 7.01. Conditions Precedent...................................18
SECTION 7.02. Conditions Precedent to the Addition of a Seller.......19
ARTICLE VIII
Term and Termination
SECTION 8.01. Term...................................................22
SECTION 8.02. Effect of Termination..................................22
SECTION 8.03. Termination of Sellers and Seller Divisions............23
ARTICLE IX
Miscellaneous Provisions
SECTION 9.01. Amendments, Etc........................................24
SECTION 9.02. Governing Law; Submission to Jurisdiction..............24
SECTION 9.03. Notices................................................24
SECTION 9.04. Severability of Provisions.............................25
SECTION 9.05. Assignment.............................................25
SECTION 9.06. Further Assurances.....................................26
SECTION 9.07. No Waiver; Cumulative Remedies.........................26
SECTION 9.08. Counterparts...........................................26
SECTION 9.09. Binding Effect; Third-Party Beneficiaries..............26
SECTION 9.10. Merger and Integration.................................26
SECTION 9.11. Headings...............................................27
SECTION 9.12. Exhibits...............................................27
SECTION 9.13. Addition of Sellers....................................27
SECTION 9.14. Confidentiality........................................27
Exhibit A - Form of Subordinated Note
Exhibit B - Litigation
-ii-
<PAGE>
Page
Exhibit C - Form of Additional Seller Supplement
Schedule I - Location of Each Seller's Chief Executive Office
-iii-
<PAGE>
RECEIVABLES PURCHASE AGREEMENT,
dated as of November 28, 2000 (as amended,
supplemented or otherwise modified and in
effect from time to time, this "Agreement"),
among MascoTech, Inc., a Delaware
corporation ("MascoTech"), the subsidiaries
of MascoTech identified as Sellers on
Schedule I, as sellers, (each, individually,
a "Seller" and collectively, the "Sellers"),
and MTSPC, Inc., a Delaware corporation, as
purchaser (in such capacity, the
"Purchaser").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Purchaser desires to purchase from time to time certain
accounts receivable existing on the Closing Date and thereafter until the
Purchase Termination Date;
WHEREAS, the Sellers desire to sell and assign from time to time such
certain accounts receivable to the Purchaser upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed by and among
the Purchaser and the Sellers as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. All capitalized terms used herein shall have the
meanings specified herein or, if not so specified, the meaning specified in, or
incorporated by reference into, Schedule A to the Receivables Transfer
Agreement, dated as of the date hereof (as amended, supplemented or otherwise
modified and in effect from time to time, the "Receivables Transfer Agreement"),
by and among MTSPC, Inc., as Transferor thereunder, MascoTech, Inc.,
individually, as Collection Agent and as Guarantor thereunder, the several CP
Conduit Purchasers, Committed Purchasers and Funding Agents named therein, and
The Chase Manhattan Bank, as Administrative Agent thereunder.
SECTION 1.02. Other Terms. All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles. All terms used in Article 9 of the Relevant UCC, and not
specifically defined herein, are used herein as defined in such Article 9.
SECTION 1.03. Computation of Time Periods. Unless other-
<PAGE>
wise stated in this Agreement, in the computation of a period of time from a
specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but excluding," and the
word "within" means "from and excluding a specified date and to and including a
later specified date."
ARTICLE II
Purchase, Conveyance and Servicing of Receivables
SECTION 2.01. Sales. (a) Upon the terms and subject to the conditions set
forth herein, and without recourse (except such limited recourse as is
specifically provided for in Sections 5.01(q), 6.01 and 6.02), each of the
Sellers hereby sells, assigns, transfers and conveys to the Purchaser, and the
Purchaser hereby purchases from each of the Sellers, all of such Seller's right,
title and interest, whether now owned or hereafter acquired and wherever
located, in, to and under the Receivables outstanding on the Closing Date and
thereafter owned by each of the Sellers, through any Purchase Termination Date,
together with all Related Security and Collections with respect thereto (to the
extent that such right, title and interest was not already purchased by the
Purchaser) and all Proceeds of the foregoing. Such interest in the Receivables,
expressed as a dollar amount, shall be equal to the aggregate unpaid balance of
the Receivables from time to time. Any sale, assignment, transfer and conveyance
hereunder does not constitute an assumption by the Purchaser of any obligations
of the Sellers or any other Person to Obligors or to any other Person in
connection with the Receivables or under any Related Security or any other
agreement or instrument relating to the Receivables.
(b) In connection with such sale, each Seller agrees to execute and
deliver for filing on or prior to the Closing Date, at its own expense, a
financing statement or statements (Form UCC-1) with respect to the Receivables
and the other property described in Section 2.01(a) sold by such Seller
hereunder meeting the requirements of applicable state law in such manner and in
such jurisdictions as are necessary to perfect and protect the interests of the
Purchaser created hereby in the Receivables under the Relevant UCC against all
creditors of, and purchasers from, such Seller, and to deliver either the
originals of such financing statements or a file-stamped copy of such financing
statements or other evidence of such filings to the Purchaser on or prior to the
Closing Date.
(c) Each of the Sellers agrees that from time to time, at its expense,
it will promptly execute and deliver all instruments and documents and take all
actions as may be necessary or as the Purchaser may reasonably request in order
to perfect or protect the interest of the Purchaser in the Receivables purchased
hereunder or to enable the Purchaser to exercise or enforce any of its rights
hereunder. Without limiting the foregoing, each Seller will, in order to
accurately reflect this purchase and sale transaction, execute and file such
financing or continuation statements or amendments thereto or assignments
thereof (as permitted pursuant
-2-
<PAGE>
hereto) as may be requested by the Purchaser and mark its master data processing
records (or related subledger) and other documents with a legend describing the
purchase by the Purchaser of the Receivables and the interest transferred by the
Purchaser to the Administrative Agent pursuant to the Receivables Transfer
Agreement and stating "An interest in these accounts receivable has been granted
to The Chase Manhattan Bank, as Administrative Agent, pursuant to a Receivables
Transfer Agreement dated as of November 28, 2000." The Sellers shall, upon
request of the Purchaser, obtain such additional search reports as the Purchaser
shall request. To the fullest extent permitted by applicable law, the Purchaser
shall be permitted to sign and file continuation statements and amendments
thereto and assignments thereof without the Sellers' signatures. Carbon,
photographic or other reproduction of this Agreement or any financing statement
shall be sufficient as a financing statement.
(d) It is the express intent of the Sellers and the Purchaser that the
conveyance of the Receivables by the Sellers to the Purchaser pursuant to this
Agreement be construed as a sale of such Receivables by the Sellers to the
Purchaser. Further, it is not the intention of the Sellers and the Purchaser
that such conveyance be deemed a grant of a security interest in the Receivables
by the Sellers to the Purchaser to secure a debt or other obligation of the
Sellers. Except under the limited circumstances described in Sections 5.01(q),
6.01 and 6.02, the Sellers shall have no right or obligation hereunder to
repurchase or otherwise reacquire any such Receivables. Except as otherwise
provided in Sections 5.01(q), 6.01 and 6.02, each sale of Receivables by the
Sellers hereunder is made without recourse of any kind. However, in the event
that, notwithstanding the intent of the parties, the Receivables are construed
to constitute property of the Sellers, then (i) this Agreement shall be deemed
to be, and hereby is, a security agreement within the meaning of the Relevant
UCC; and (ii) the conveyances by each of the Sellers provided for in this
Agreement shall be deemed to be, and each of the Sellers hereby grants to the
Purchaser, a security interest in, to and under all of such Seller's right,
title and interest in, to and under the Receivables, together with all Related
Security and Collections with respect thereto and all Proceeds of the foregoing,
to secure the rights of the Purchaser set forth in this Agreement or as may be
determined in connection therewith by applicable law. The Sellers and the
Purchaser shall, to the extent consistent with this Agreement, take such actions
as may be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Receivables, such security interest would be deemed to
be a perfected security interest in favor of the Purchaser under applicable law
and will be maintained as such throughout the term of this Agreement.
SECTION 2.02. Servicing of Receivables. The servicing, administering and
collection of the Receivables shall be conducted by each of the Sellers, as
agents of the Collection Agent, in accordance with the terms and conditions of
the Receivables Transfer Agreement. Each Seller hereby agrees to perform, take
or cause to be taken all such action as may be necessary or advisable to collect
each Receivable from time to time, all in accordance with the terms and
conditions of the Receivables Transfer Agreement, the Credit and Collection
Policy and applicable laws,
-3-
<PAGE>
rules and regulations and with the care and diligence which each of the Sellers
employs in servicing similar receivables for its own account. The Purchaser
hereby appoints each of the Sellers as its agent to enforce the Purchaser's
rights and interests in, to and under the Receivables, the Related Security and
the Collections with respect thereto. To the extent permitted by applicable law,
each Seller hereby grants to any Collection Agent appointed under the
Receivables Transfer Agreement and at any time following the designation of a
Collection Agent other than MascoTech, any Seller or the Purchaser, to the
Administrative Agent an irrevocable power of attorney to take in the Seller's
name and on behalf of the Seller any and all steps necessary or desirable, in
the reasonable determination of the Collection Agent or the Administrative
Agent, to collect all amounts due under any and all Receivables, including,
without limitation, endorsing the Seller's name on checks and other instruments
representing Collections and enforcing such Receivables and the related
Contracts. Each of the Sellers shall hold in trust for the Purchaser, in
accordance with its interests, all Records which evidence or relate to the
Receivables or Related Security, Collections and Proceeds with respect thereto.
Notwithstanding anything to the contrary contained herein, from and after the
occurrence of a Termination Event or a Collection Agent Default, the
Administrative Agent, upon written notice to the Collection Agent on behalf of
the CP Conduit Purchasers and the Committed Purchasers, shall have the absolute
and unlimited right to terminate the Sellers' servicing activities described in
this Section 2.02. In consideration of the foregoing, the Purchaser agrees to
pay each Seller a servicing fee of one percent (1.0%) per annum on the aggregate
Outstanding Balance of the Receivables sold by such Seller, payable monthly, for
its performance of the duties and obligations described in this Section 2.02.;
provided that any such monthly payment shall be reduced by any amounts payable
in such month by the CP Conduit Purchasers or the Committed Purchasers to
MascoTech, in its capacity as Collection Agent pursuant to the Receivables
Transfer Agreement.
ARTICLE III
Consideration and Payment; Reporting
SECTION 3.01. Purchase Price. The purchase price for the Receivables and
related property conveyed to the Purchaser by the Sellers under this Agreement
(other than Receivables and related property contributed to the Purchaser
pursuant to the penultimate sentence of Section 3.02(a))on any Business Day
shall be a dollar amount equal to the product of (i) the aggregate Outstanding
Balance of the Receivables sold on such Business Day and (ii) the then
applicable Discount Percentage (the "Purchase Price").
SECTION 3.02. Payment of Purchase Price. (a) The Purchase Price for each
Receivable sold hereunder on any Business Day shall be paid or provided for on
the Business Day on which such sale occurred (i) by payment in immediately
available funds
-4-
<PAGE>
to the extent the Purchaser has such funds available and (ii) to the extent such
funds are not available, by increasing the amount due under the Subordinated
Note by notation thereon; provided, however, that the aggregate outstanding
principal amount of the Subordinated Note on any Business Day (after giving
effect to all repayments thereof on or before such Business Day) shall not
exceed the lesser of (x) 30% of the Outstanding Balance of the Receivables
purchased hereunder existing on such Business Day and (y) an amount that would
cause the Purchaser's net worth (as defined in accordance with GAAP) to be less
than $25,000,000. To the extent that the Purchaser does not have sufficient cash
or availability under the Subordinated Note to pay the total Purchase Price for
Receivables sold on any Business Day in full, Metalync Company LLC may make a
cash capital contribution to the Purchaser. No sales of Receivables shall be
made hereunder on and after the Purchase Termination Date.
(b) All advances made by the Sellers to Purchaser pursuant to Section
3.02(a) (each, an "Advance") shall be evidenced by a single subordinated note,
duly executed on behalf of Purchaser, in substantially the form of Exhibit A
annexed hereto, delivered on the Closing Date and payable to MascoTech, as agent
for the Sellers (as amended, supplemented or otherwise modified and in effect
from time to time, the "Subordinated Note"). The Collection Agent is hereby
authorized by Purchaser to endorse on the schedule attached to the Subordinated
Note (or a continuation of such schedule attached thereto and made a part
thereof) an appropriate notation evidencing the date and amount of each Advance,
as well as the date and amount of each payment with respect thereto; provided,
however, that the failure of any Person to make such a notation shall not affect
any obligations of Purchaser thereunder. Any such notation shall be conclusive
and binding as to the date and amount of such Advance, or payment of principal
or interest thereon, absent manifest error.
(c) The terms and conditions of the Subordinated Note and all Advances
thereunder shall be as follows:
(i) Allocation of Advances. Advances shall be allocated among the
Sellers pro rata according to the Purchase Price due to each Seller on the
date such Advances are made.
(ii) Repayment of Advances. All amounts paid by the Purchaser with
respect to the Advances shall be allocated first to the repayment of
accrued interest until all such interest is paid, and then to the
outstanding principal amount of the Advances. Subject to the provisions of
this Agreement, the Purchaser may borrow, repay and reborrow Advances on
and after the date hereof and prior to the termination of this Agreement,
subject to the terms, provisions and limitations set forth herein.
(iii) Interest. The Subordinated Note shall bear interest from its
date on the outstanding principal balance thereof at an initial rate per
annum equal to 11.5%, adjusted on each Interest Payment Date (as defined
therein) to an amount equal to the
-5-
<PAGE>
Prime Rate (as defined therein) plus 2%. Interest on each Advance shall be
computed based on the number of days elapsed in a year of 360 days.
(iv) Sole and Exclusive Remedy; Subordination. The Purchaser shall be
obligated to repay Advances to the Sellers only to the extent of funds
available to the Purchaser from Collections on the Receivables and, to the
extent that such payments are insufficient to pay all amounts owing to the
Sellers under the Subordinated Note, the Sellers shall not have any claim
against the Purchaser for such amounts and no further or additional
recourse shall be available against Purchaser. The Subordinated Note shall
be fully subordinated to any rights of the Administrative Agent, on behalf
of the CP Conduit Purchasers and the Committed Purchasers pursuant to the
Receivables Transfer Agreement and the Asset Purchase Agreement, and shall
not evidence any rights in the Receivables or related property.
(v) Offsets, etc. The Purchaser may offset any amount due and owing by
the Sellers to the Purchaser against any amount due and owing by the
Purchaser to the Sellers under the terms of the Subordinated Note.
SECTION 3.03. Reports. Each Seller will furnish to the Collection Agent all
information with respect to the Receivables sold by such Seller under this
Agreement required by the Collection Agent in order to complete the weekly
Deposit Reports and monthly Settlement Statements delivered by the Collection
Agent pursuant to the Receivables Transfer Agreement. Each delivery of a Deposit
Report and Settlement Statement by the Collection Agent shall be deemed to be a
representation and warranty by each Seller that all information set forth in
those reports with respect to the Receivables sold by such Seller under this
Agreement and Collections thereof is true and correct.
SECTION 3.04. Transfer of Records. (a) In connection with the Purchase of
Receivables hereunder, each of the Sellers hereby sells, transfers, and conveys
to the Purchaser all of its right and title to and interest in the Records
relating to all of its Receivables sold hereunder, without the need for any
further documentation in connection with any Purchase. In connection with such
transfer, each of the Sellers hereby grants to the Purchaser, the Collection
Agent and the Administrative Agent an irrevocable, non-exclusive license to use
without royalty or payment of any kind, all software used by such Seller to
account for its Receivables, to the extent necessary to administer its
Receivables, whether such software is owned by the Parent or is owned by others
and used by the Parent under license agreements with respect thereto, provided
that should the consent of any licensor to such grant of license described
herein be required, each Seller agrees that upon the request of the Purchaser,
the Collection Agent or the Administrative Agent, such Seller will use
reasonable efforts to obtain the consent of such third-party licensor. The
irrevocable license hereby granted shall terminate on the date when the Net
Invest-
-6-
<PAGE>
ment has been reduced to zero, all other Aggregate Unpaids have been paid in
full and the Commitments have been terminated.
(b) Each Seller shall take such action as requested by the Purchaser,
from time to time hereafter, that may be necessary or appropriate to ensure that
the Purchaser and its assignees have an enforceable right to use all Records and
all software used to account for the Receivables and/or recreate such records.
(c) The use of Records by the Purchaser is subject to Section 9.14 of
this Agreement.
SECTION 3.05. Payments and Computations. All amounts due to be paid or
deposited by the Purchaser hereunder shall be paid or deposited in accordance
with the terms hereof on the day when due in immediately available funds to the
account designated from time to time by the Sellers or as otherwise directed by
the Sellers. In the event that any payment owed by any Person hereunder becomes
due on a day that is not a Business Day, then such payment shall be made on the
next succeeding Business Day. Except as otherwise provided in the Transaction
Documents, any amount due hereunder that is not paid when due hereunder shall
bear interest at the Base Rate as in effect from time to time until paid in
full; provided, however, that such interest rate shall not at any time exceed
the maximum rate permitted by applicable law. All computations of interest
payable hereunder shall be made on the basis of a year of 360 days for the
actual number of days (including the first, but excluding the last) elapsed.
ARTICLE IV
Representations and Warranties
SECTION 4.01. Sellers' Representations and Warranties. Each of the Sellers
represents and warrants to the Purchaser as of the Closing Date and on each
Business Day on which Receivables are sold hereunder:
(a) Corporate Existence and Power. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
State of its incorporation and has all requisite corporate power and all
material governmental licenses, authorizations, consents and approvals
required to carry on its business in each jurisdiction in which its
business is now conducted except where the failure to have such licenses,
authorizations, consents and approvals would not have a Material Adverse
Effect. The Seller is duly qualified to do business in, and is in good
standing in, every other jurisdiction in which the nature of its business
requires it to be so qualified, ex-
-7-
<PAGE>
cept where the failure to be so qualified or in good standing would not
have a Material Adverse Effect.
(b) Corporate and Governmental Authorization; Contravention. The
execution, delivery and performance by the Seller of the Transaction
Documents to which it is a party are within the Seller's corporate powers,
have been duly authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any Official Body or official
thereof (except for the filing of UCC financing statements as required by
this Agreement), and to the best of the Sellers' knowledge, do not
contravene, or constitute a default under, any provision of applicable law,
rule or regulation or of the Certificate of Incorporation or the By-Laws of
the Seller or of any agreement, judgment, injunction, order, writ, decree
or other instrument binding upon the Seller or result in the creation or
imposition of any Adverse Claim on the assets of the Seller (except those
created by this Agreement, the Receivables Transfer Agreement and the Asset
Purchase Agreement).
(c) Valid Sale; Binding Effect. Each purchase of Receivables and
Related Security by the Purchaser hereunder shall constitute a valid sale
and assignment by the Seller to the Purchaser, enforceable against
creditors of, and purchasers from, the Seller. Each of the Transaction
Documents to which the Seller is a party will constitute the legal, valid
and binding obligation of the Seller, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws affecting the
rights of creditors and general equitable principles (whether considered in
a proceeding in equity or at law).
(d) Quality of Title. Immediately preceding the sale of the
Receivables and Related Security pursuant to this Agreement, the Seller was
the owner of all of the Receivables, free and clear of all liens,
encumbrances, security interests, preferences or other security
arrangement. On or prior to the date hereof, all financing statements and
other documents required to be recorded or filed in order to perfect and
protect the interest of the Purchaser in, to and under the Receivables
against all creditors of and purchasers from the Seller will have been duly
executed and delivered to the Purchaser or its representative for filing 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
provided for in full.
(e) Accuracy of Information. All written information heretofore
furnished by the Seller to the Purchaser, the Collection Agent and the
Administrative Agent for purposes of or in connection with this Agreement,
any other Transaction Document, or any transaction contemplated hereby or
thereby is, and all such information hereafter furnished by the Seller to
the Purchaser, the Collection Agent, the Administrative Agent, the Funding
Agents, the CP Conduit Purchasers and the Committed Purchasers
-8-
<PAGE>
will be, true and accurate in every material respect, on the date such
information is stated or certified.
(f) Tax Status. The Seller has filed all material tax returns
(Federal, state and local) required to be filed and has paid or made
adequate provision for the payment of all material taxes, assessments and
other similar governmental charges other than taxes contested in good faith
and for which adequate reserves have been established in accordance with
GAAP and taxes which are not yet due and payable.
(g) Litigation. Except as set forth in Exhibit B hereof, there are no
actions, suits or proceedings pending, or to the knowledge of the Seller
threatened, against or affecting the Seller or any Affiliate of the Seller
or their respective properties, in or before any court, arbitrator or other
Official Body, which could reasonably be expected to, individually or in
the aggregate, have a Material Adverse Effect.
(h) Place of Business. The principal place of business and chief
executive office of the Seller are located at the address specified on
Schedule I, and the offices where the Seller keeps all its Records, are
located at the address specified on Schedule I, or such other locations
notified to the Purchaser in accordance with this Agreement in
jurisdictions where all action required by the terms of this Agreement has
been taken and completed.
(i) Solvency. The Seller is not insolvent, does not have unreasonably
small capital with which to carry on its business, is able to pay its debts
generally as they become due and payable, and its liabilities do not exceed
its assets.
(j) Tradenames, Etc. As of the date hereof: (i) The Seller has only
the subsidiaries and divisions listed on Exhibit J to the Receivables
Transfer Agreement; and (ii) the Seller has, within the last five years,
operated only under the tradenames identified on Exhibit J to the
Receivables Transfer Agreement, and, within the last five (5) years, has
not changed its name, merged with or into or consolidated with any other
corporation or been the subject of any proceeding under Title 11, United
States Code (Bankruptcy), except as disclosed in Exhibit J to the
Receivables Transfer Agreement.
(k) Nature of Receivables. Each Receivable included in the calculation
of the Net Receivables Balance in fact satisfies at such time the
definition of "Eligible Receivable" and is an "eligible asset" as defined
in Rule 3a-7 under the Investment Company Act of 1940, as amended, and is
not a Defaulted Receivable.
(l) Credit and Collection Policy. Since the Closing Date, there have
been no material changes in the Credit and Collection Policy other than as
permitted hereunder.
-9-
<PAGE>
(m) Collections and Servicing. Since June 30, 2000, there has been no
material adverse change in the ability of the Seller to service and collect
the Receivables.
(n) Binding Effect of Receivables and Contract. Each Receivable and
related Contract constitutes a legal, valid and binding obligation of the
Obligor, enforceable against the Obligor, subject to the effect of
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally and general equitable principles (whether considered in a
proceeding at law or in equity).
(o) Not an Investment Company. The Seller is not, nor is it controlled
by, an "investment company" within the meaning of the Investment Company
Act of 1940, as amended, and it is exempt from all provisions of such Act.
(p) ERISA. The Seller and its ERISA Affiliates are in compliance in
all material respects with ERISA, and no lien exists in favor of the
Pension Benefit Guaranty Corporation on any of the Receivables.
(q) Lock-Box Accounts. The names and addresses of all the Lock-Box
Banks, together with the account numbers of the Lock-Box Accounts at such
Lock-Box Banks, are specified in Exhibit C to the Receivables Transfer
Agreement. All Obligors have been instructed to make payment to a Lock-Box
Account.
(r) Bulk Sales. No transaction contemplated by this Agreement requires
compliance with any bulk sales act or similar law.
(s) Reasonably Equivalent Value. The Purchase Price constitutes
reasonably equivalent value in consideration for the transfer by each
Seller to the Purchaser of Receivables from such Seller pursuant to this
Agreement and no such transfer has been made for or on account of an
antecedent debt owed by such Seller to the Purchaser, and no such transfer
is or may be voidable or subject to avoidance under any section of the
Bankruptcy Code.
SECTION 4.02. Reaffirmation of Representations and Warranties bv the
Sellers; Notice of Breach. On the Closing Date and on each Business Day on which
Receivables are sold hereunder, the Sellers, by accepting the proceeds of such
sale, shall be deemed to have certified that all representations and warranties
described in Section 4.01 are true and correct on and as of such day as though
made on and as of such day. The representations and warranties set forth in
Section 4.01 shall survive (i) the conveyance of the Receivables to the
Purchaser, (ii) the termination of the rights and obligations of the Purchaser
and the Sellers under this Agreement and (iii) the termination of the rights and
obligations of the Transferor, the Sellers and the Funding Agent under the
Receivables Transfer Agreement. Upon the coming to the knowledge of any
Responsible Officer of
-10-
<PAGE>
the Purchaser or any of the Sellers of a breach of any of the foregoing
representations and warranties, the party with knowledge of such breach shall
give prompt written notice to the other within three (3) Business Days of such
discovery.
ARTICLE V
Covenants of the Sellers
SECTION 5.01. Covenants of the Sellers. Each of the Sellers hereby
covenants and agrees with the Purchaser that, for so long as this Agreement is
in effect, and until all Receivables which have been sold to the Purchaser
pursuant hereto, shall have been paid in full or written-off as uncollectible,
and all amounts owed by the Sellers pursuant to this Agreement have been paid in
full, unless the Purchaser and the Administrative Agent otherwise consents in
writing, as follows:
(a) Conduct of Business. The Seller will, and will cause each of its
Affiliates to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is
presently conducted and do all things necessary to remain duly organized,
validly existing and in good standing in its jurisdiction of incorporation
and will maintain all requisite authority to conduct its business in each
jurisdiction in which its business is conducted except where the failure to
be so qualified or in good standing would not have a Material Adverse
Effect.
(b) Compliance with Laws. The Seller will, and will cause each of its
Affiliates to, comply in all material respects with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to
which it may be subject, except to the extent that the failure to comply
with such laws, rules, regulations, orders, writs, judgments, injunctions,
decrees or awards would not materially adversely affect the ability of the
Seller to perform its obligations under this Agreement.
(c) Furnishing of Information and Inspection of Records. The Seller
will furnish to the Purchaser from time to time such information with
respect to itself or the Receivables as the Purchaser may reasonably
request, including, without limitation, listings identifying the Obligor
and the Outstanding Balance for each Receivable. The Seller will at any
time and from time to time during regular business hours, upon reasonable
notice (it being agreed that one Business Day's notice shall be reasonable
when a Termination Event or Potential Termination Event has taken place and
is continuing), and at the Purchaser's expense, permit the Purchaser, its
agents or representatives or such other individuals as the Purchaser may
reasonably request, (i) to examine and make copies of and abstracts from
all Records and (ii) to visit the offices and properties of the Seller for
the purpose of examining such Records, and to discuss
-11-
<PAGE>
matters relating to Receivables or the Seller's performance hereunder with
any of the officers or employees of the Seller having knowledge of such
matters.
(d) Keeping of Records and Books of Account. The Seller will maintain
a system of accounting established and administered in accordance with
generally accepted accounting principles, consistently applied, and will
maintain and implement administrative and operating procedures (including,
without limitation, an ability to recreate records evidencing Receivables
in the event of the destruction of the originals thereof), and keep and
maintain, or obtain, as and when required, all documents, books, records
and other information reasonably necessary or advisable for the collection
of all Receivables (including, without limitation, records adequate to
permit the daily identification of each Receivable and all Collections of
and adjustments to each existing Receivable). The Seller will give the
Purchaser prompt notice of any change in the administrative and operating
procedures referred to in the previous sentence to the extent such change
could reasonably be expected to have a Material Adverse Effect.
(e) Performance and Compliance with Receivables and Contracts. The
Seller at its expense will timely and fully perform and comply with all
material provisions, covenants and other promises required to be observed
by it under the Contracts related to the Receivables.
(f) Credit and Collection Policies. The Seller will comply in all
material respects with the Credit and Collection Policy in regard to each
Receivable and the related Contract.
(g) Collections. The Seller shall instruct all Obligors to cause all
Collections to be deposited directly to a Lock-Box Account.
(h) Collections Received. The Seller shall hold in trust for the
Purchaser, and deposit immediately (and in any event within one Business
Day) after receipt thereof to a Lock-Box Account all Collections received
from time to time by the Seller. The Seller shall prevent the deposit of
any funds other than Collections into any of the Lock-Box Accounts and, to
the extent that any such funds are nevertheless deposited into any of such
Lock-Box Accounts, promptly (and in any event within one Business Day)
identify any such funds to the Collection Agent for segregation and
remittance to the owner thereof. If such Seller or any of its agents or
representatives of Affiliates shall at any time receive any cash, checks or
other instruments constituting Collections, such recipient shall segregate
such payments and hold such payments in trust for the Purchaser and shall,
promptly upon receipt (and in any event within one Business Day following
receipt), remit all such Collections, duly endorsed or with duly executed
instruments of transfer, to a Lock-Box Account.
-12-
<PAGE>
(i) Sale Treatment. The Seller agrees to treat each conveyance
hereunder for all purposes (including, without limitation, tax and
financial accounting purposes) as a sale and, to the extent any such
reporting is required, shall report the transactions contemplated by this
Agreement on all relevant books, records, tax returns, financial statements
and other applicable documents as a sale of the Receivables to the
Purchaser.
(j) No Sales, Liens, Etc. Except as otherwise provided herein, the
Seller will not sell, assign (by operation of law or otherwise) or
otherwise dispose of, or create or suffer to exist any Adverse Claim upon
(except for the filing of any financing statement as required under this
Agreement) or with respect to, any Receivable, Related Security or
Collections or upon or with respect to any Lock-Box Account to which any
Collections of any Receivable are sent, or, in each case, assign any right
to receive income in respect thereof.
(k) No Extension or Amendment of Receivables. The Seller will not
extend, amend or otherwise modify the terms of any Receivable, or amend,
modify or waive any term or condition of any Contract related thereto in a
manner which adversely affects the amount or collectibility of any
Receivable, except as provided in the Receivables Transfer Agreement,
without the prior written consent of the Purchaser.
(l) No Change in Credit and Collection Policy. Except as provided in
the Receivables Transfer Agreement, the Seller will not make any change in
the Credit and Collection Policy, which change might impair the Seller's
ability to collect the Receivables, considered as a whole, in any respect.
(m) No Mergers, Etc. The Sellers will not (i) consolidate or merge
with or into any other Person, or (ii) sell, lease or transfer all or
substantially all of its assets to any other Person; -provided, that the
Seller may merge with another Person if the Seller is the surviving entity
and such merger or consolidation does not cause a Termination Event or
Potential Termination Event under Section 7.01(h) of the Receivables
Transfer Agreement.
(n) Change in Payment Instructions to Obligors; De-posits to Lock-Box
Accounts. The Sellers will not add or terminate, or make any change to, any
Lock-Box Account, except in accordance with the Receivables Transfer
Agreement. The Seller will not deposit or otherwise credit, or cause or
permit to be so deposited or credited, to any Lock-Box Account, cash or
cash proceeds other than Collections of Receivables.
(o) Change of Name, Etc. The Sellers shall not change its name,
identity or structure or its chief executive office, unless at least ten
(10) days prior to the effective
-13-
<PAGE>
date of any such change the Seller delivers to the Purchaser and the
Administrative Agent (i) financing statements under the Relevant UCC,
executed by the Seller, necessary to reflect such change and to continue
the perfection of the Purchaser's interest in the Receivables and (ii) new
or revised Lock-Box Account Agreements which reflect such change and enable
the Administrative Agent, on behalf of the CP Conduit Purchasers and the
Committed Purchasers, to exercise its rights under the Transaction
Documents.
(p) Separate Existence. The Seller shall:
(i) Maintain its deposit account or accounts, separate from those
of the Purchaser and use its commercially reasonable efforts to ensure
that its funds will not be diverted to the Purchaser and that its
funds and assets will not be commingled with those of the Purchaser;
(ii) To the extent that it shares any officers or other employees
with the Purchaser, fairly allocate between it and the Purchaser the
salaries of and the expenses related to providing benefits to such
officers and other employees, and the Seller and the Purchaser shall
bear their respective fair share of the salary and benefit costs
associated with all such common officers and employees;
(iii) To the extent that it jointly contracts with the Purchaser
to do business with vendors or service providers or to share overhead
expenses, fairly allocate between it and the Purchaser the costs
incurred in so doing, and it and the Purchaser shall bear their fair
shares of such costs. To the extent that it contracts or does business
with vendors or service providers where the goods and services
provided are partially for the benefit of the Purchaser, the costs
incurred in so doing shall be fairly allocated between it and the
Purchaser in proportion to the benefit of the goods or services each
is provided, and the Seller and the Purchaser shall bear their fair
shares of such costs;
(iv) Enter into all material transactions with the Purchaser,
whether currently existing or hereafter entered into, only on an arm's
length basis, it being understood and agreed that the transactions
contemplated in the Transaction Documents meet the requirements of
this clause (iv);
(v) Maintain office space separate from the office space of the
Purchaser (but which may be located at the same address as the
Purchaser). To the extent that it and the Purchaser have offices in
the same location, there shall be a fair and appropriate allocation of
overhead costs between them, and each shall bear its fair share of
such expenses subject to a written sublease agreement;
-14-
<PAGE>
(vi) Conduct its affairs strictly in accordance with its
certificate of incorporation and observe all necessary, appropriate
and customary corporate formalities, including, but not limited to,
holding all regular and special stockholders' and directors' meetings
appropriate to authorize all corporate action, keeping separate and
accurate minutes of its meetings, passing all resolutions or consents
necessary to authorize actions taken or to be taken, and maintaining
accurate and separate books, records and accounts, including, but not
limited to, payroll and intercompany transaction accounts;
(vii) Not assume or guarantee any of the liabilities of the
Purchaser;
(viii) Take, or refrain from taking, as the case may be, all
other actions that are necessary to be taken or not to be taken in
order (x) to ensure that the assumptions and factual recitations set
forth in the Specified Bankruptcy Opinion Provisions remain true and
correct with respect to it (and, to the extent within its control, to
ensure that the assumptions and factual recitations set forth in the
Specified Bankruptcy Opinion Provisions remain true and correct with
respect to the Purchaser) and (y) to comply with those procedures
described in such provisions that are applicable to it;
(ix) The books of account, financial reports and corporate
records of the Seller will be maintained separately from those of the
Parent and each other Affiliate of the Seller;
(x) The accounting records and the published financial statements
of the Seller will clearly show that, for accounting purposes, the
Receivables and Related Security have been sold to the Purchaser;
(xi) The Seller's assets will be maintained in a manner that
facilitates their identification and segregation from those of the
Parent, the other Sellers, the Transferor and other Affiliates of the
Parent;
(xii) The Seller shall not, directly or indirectly, name the
Purchaser or enter into any agreement to name the Purchaser a direct
or contingent beneficiary or loss payee or any insurance policy
covering the property of the Seller; and
(xiii) The Seller will not be, nor will hold itself out to be,
responsible for the debts of the Purchaser or the decisions or actions
in respect of the daily business and affairs of the Purchaser. The
Seller will immediately correct any known misrepresentation with
respect to the foregoing, and the Sellers, the Purchaser and their
Affiliates will not operate or purport to operate as an inte-
-15-
<PAGE>
grated single economic unit with respect to each other or in their
dealing with any other entity.
(q) Indemnification. The Seller agrees to indemnify, defend and hold
the Purchaser harmless from and against any and all losses, liabilities,
damages, judgments, claims, deficiencies, or expenses (including interest,
penalties, reasonable attorneys' fees and amounts paid in settlement) to
which the Purchaser may become subject insofar as such losses, liabilities,
damages, judgments, claims, deficiencies, or expenses arise out of or are
based upon a breach by the Seller of its representations, warranties and
covenants contained herein, or any information certified in any schedule or
certificate delivered by any of the Sellers hereunder or in connection with
the Transaction Documents, being untrue in any material respect at any
time; provided that in no event shall this Section 5.01(q) be construed to
include uncollectibility of any Receivable for credit-related reasons
pertaining to the related Obligor. The obligations of the Seller under this
Section 5.01(q) shall be considered to have been relied upon by the
Purchaser and the Administrative Agent, on behalf of the CP Conduit
Purchasers, the Funding Agents and the Committed Purchasers, and shall
survive the execution, delivery, performance and termination of this
Agreement for a period of three (3) years following the Purchase
Termination Date, regardless of any investigation made by the Purchaser or
the Administrative Agent or on behalf of either of them.
It is expressly understood and agreed by the parties (i) that the
foregoing indemnification is not intended to, and shall not constitute a
guarantee of the collectibility or payment of the Purchased Receivables and
(ii) that nothing in this Section 5.01(q) shall constitute recourse (except
as otherwise specifically provided in this Agreement) for (a) uncollectible
Receivables or other obligations hereunder or related costs or expenses
resulting from such indemnified Person's gross negligence or wilful
misconduct, (b) any franchise taxes owed by such indemnified Person or (c)
any other taxes imposed against such indemnified Person on account of its
ownership of the Purchased Receivables to the extent such taxes are
measured by or against the gross or net income or receipts of such Person.
(r) ERISA. (i) The Seller will not (A) engage or permit any of its
ERISA Affiliates to engage in any prohibited transaction (as defined in
Section 4975 of the Code and Section 406 of ERISA) for which an exemption
is not available or has not previously been obtained from the U.S.
Department of Labor; (B) permit to exist any accumulated funding deficiency
(as defined in Section 302(a) of ERISA and Section 412(a) of the Code) or
funding deficiency with respect to any Benefit Plan other than a
Multiemployer Plan; (c) fail to make any payments to any Multiemployer Plan
that the Seller or any ERISA Affiliate of the Seller is required to make
under the agreement relating to such Multiemployer Plan or any law
pertaining thereto; (D) terminate any Benefit Plan so as to result in any
liability; or (E) permit to exist any occurrence of any
-16-
<PAGE>
reportable event described in Title IV of ERISA which represents a material
risk of a liability to the Sellers, or any ERISA Affiliate of the Seller
under ERISA or the Code, if such prohibited transactions, accumulated
funding deficiencies, failure to make payments, terminations and reportable
events occurring within any fiscal year of the Seller, in the aggregate,
involve a payment of money or an incurrence of liability by the Seller or
any ERISA Affiliate of the Seller, in an amount which would reasonably be
expected to have a Material Adverse Effect and (ii) the Seller shall
promptly give the Purchaser written notice upon becoming aware that the
Seller is not in compliance in all material respects with ERISA or that any
ERISA lien on any of the Receivables exists and, promptly after the receipt
or filing thereof, shall provide the Purchaser with copies of all reports
and notices with respect to any reportable event (as defined in Article IV
of ERISA) which the Seller or any ERISA Affiliate thereof files under ERTSA
with the Internal Revenue Service, the Pension Benefit Guaranty Corporation
or the U.S. Department of Labor or which the Seller or any ERISA Affiliate
thereof receives from the Internal Revenue Service, the Pension Benefit
Guaranty Corporation or the U.S. Department of Labor.
(s) Amendments to Credit Agreement. The Seller agrees not to amend the
Credit Agreement without the Purchaser's consent.
ARTICLE VI
Repurchase Obligation
SECTION 6.01. Mandatory Repurchase.
(a) Breach of Representation or Warranty. If any Receivable which has
been sold by any Seller hereunder and which has been reported by such Seller as
an Eligible Receivable to the Collection Agent in the reports of such Seller
delivered pursuant to Section 3.03 shall have failed to meet the conditions set
forth in the definition of Eligible Receivable on the date of such report or if,
on any day, any representation or warranty made herein in respect of such
Receivable shall no longer be true in any material respect, such Seller shall be
deemed to have received on the date of such report or such day, as applicable, a
Collection of such Receivable in full and shall on such day pay to the Purchaser
an amount equal to the aggregate Outstanding Balance of such Receivable.
(b) Reconveyance Under Certain Circumstances. Each Seller agrees that,
in the event of a breach of any of the representations and warranties set forth
in Sections 4.01(d), (h), (j), (k), (1), (n), (o), and (p), with respect to any
Receivable which has been sold hereunder, such Seller agrees to accept the
reconveyance of such Receivable upon receipt by such Seller of notice given in
writing by the Purchaser and such Seller's failure to cure such
-17-
<PAGE>
breach within fifteen (15) days (or, in the case of Section 4.01(d) or (k),
within one (1) Business Day) after receipt of such notice. In the event of a
reconveyance under this Section 6.01(b), the Seller shall pay to the Purchaser
in immediately available funds on such 15th day (or such Business Day, if
applicable) an amount equal to the Outstanding Balance of any such Receivable.
SECTION 6.02. Dilutions, Etc. Each Seller agrees that if on any Business
Day the Outstanding Balance of a Receivable, an interest in which has been sold
by such Seller hereunder, is either (x) reduced as a result of defective,
rejected or returned goods or other dilution factor, any billing adjustment or
other adjustment, or (y) reduced or canceled as a result of (i) a setoff or
dispute in respect of any claim by any Person (whether such claim arises out of
the same or a related transaction or an unrelated transaction), or (ii) any
action by any Federal or state taxing authority or as a result of the payment by
any Obligor of any portion of a Receivable constituting a tax or governmental
fee or charge to any Person other than the Purchaser, then such Seller shall be
deemed to have received on such day a collection of such Receivable in the
amount of such reduction, cancelation or payment made by the Obligor and shall
on such day pay to the Purchaser an amount equal to such reduction or
cancelation on the last Business Day of the calendar month in which such
reduction or cancelation occurred.
ARTICLE VII
Conditions Precedent
SECTION 7.01. Conditions Precedent. The obligations of the Purchaser to
purchase the Receivables on the Closing Date and on any Business Day on which
Receivables are sold hereunder shall be subject to the satisfaction of the
following conditions:
(a) All representations and warranties of the Sellers contained in
this Agreement shall be true and correct on the Closing Date and on the
applicable Business Day of sale, with the same effect as though such
representations and warranties had been made on such date;
(b) All information concerning the Receivables provided to the
Purchaser shall be true and correct in all material respects as of the
Closing Date, in the case of any Receivables sold on the Closing Date, or
the date such Receivables are created, in the case of any Receivables
created after the Closing Date and sold by the Sellers to the Purchaser on
a subsequent Business Day;
-18-
<PAGE>
(c) Each of the Sellers shall have substantially performed all other
obligations required to be performed by the provisions of this Agreement
and the other Transaction Documents to which it is a party;
(d) The Sellers shall have either filed or caused to be filed the
financing statement(s) required to be filed pursuant to Section 2.01(b);
(e) On the Closing Date, all corporate and legal proceedings, and all
instruments in connection with the transactions contemplated by this
Agreement and the other Transaction Documents shall be satisfactory in form
and substance to the Purchaser, and the Purchaser shall have received from
the Sellers copies of all documents (including, without limitation, records
of corporate proceedings) relevant to the transactions herein contemplated
as the Purchaser may reasonably have requested;
(f) On the Closing Date, the Sellers shall deliver to the Purchaser
and the Administrative Agent a statement of the aggregate Outstanding
Balance of the Receivables in existence as of the close of business on the
second Business Day prior to the Closing Date; and
(g) the Purchase Termination Date shall not have occurred.
SECTION 7.02. Conditions Precedent to the Addition of a Seller. The
obligation of the Purchaser to purchase Receivables and Related Security
hereunder from a Subsidiary of MascoTech requested to be an additional Seller
pursuant to Section 9.13 is subject to the conditions precedent that the
Purchaser shall have received the following items on or before the date
designated for the addition of such Seller (the "Seller Addition Date") and in
form and substance satisfactory to the Purchaser:
(a) Additional Seller Supplement. An Additional Seller Supplement
substantially in the form of Exhibit C attached hereto (with a copy for the
Administrative Agent and each Funding Agent) duly executed and delivered by
such Seller;
(b) Secretary's Certificate. A certificate of the Secretary or an
Assistant Secretary of such Seller, dated the related Seller Addition Date,
and certifying (i) that attached thereto is a true and complete copy of the
by-laws of such Seller, as in effect on the Seller Addition Date and at all
times since a date prior to the date of the resolutions described in clause
(ii) below, (ii) that attached thereto is a true and complete copy of the
resolutions, in form and substance reasonably satisfactory to the
Purchaser, of the Board of Directors of such Seller or committees thereof
authorizing the execution, delivery and performance of this Agreement and
the other Transaction Documents to which it is a party and the transactions
contemplated hereby and thereby, and that such resolutions have not been
amended, modified, revoked or rescinded and are
-19-
<PAGE>
in full force and effect, (iii) that the certificate of incorporation of
such Seller has not been amended since the date of the last amendment
thereto shown on the certificate of good standing (or its equivalent)
furnished pursuant to subsection (e) below and (iv) as to the incumbency
and specimen signature of each officer executing the Additional Seller
Supplement and any other Transaction Documents or any other document
delivered in connection therewith on behalf of such Seller (on which
certificates the Purchaser may conclusively rely until such time as the
Purchaser shall receive from such Seller a revised certificate with respect
to such Seller meeting the requirements of this subsection (b));
(c) Officer's Certificate. A Certificate of a Responsible Officer of
MascoTech, dated the related Seller Addition Date, and certifying such
Seller is in the same or a related line of business as the existing Sellers
as of the related Seller Addition Date;
(d) Corporate Documents. The organizational documents, including all
amendments thereto, of such Seller, certified as of a recent date by the
Secretary of State or other appropriate authority of the state of
incorporation, as the case may be;
(e) Good Standing Certificates. Certificates of compliance, of status
or of good standing, dated as of a recent date, from the Secretary of State
or other appropriate authority of such jurisdiction, with respect to such
Seller in each State where the ownership, lease or operation of property or
the conduct of business requires it to qualify as a foreign corporation,
except where the failure to so qualify would not have a Material Adverse
Effect;
(f) Consents, Licenses, Approvals, Etc. A certificate dated the
related Seller Addition Date of a Responsible Officer of such Seller either
(i) attaching copies of all consents (including, without limitation,
consents under loan agreements and indentures to which any Seller or its
Affiliates are parties), licenses and approvals required in connection with
the execution, delivery and performance by such Seller of the Additional
Seller Supplement and the validity and enforceability of the Additional
Seller Supplement against such Seller, and such consents, licenses and
approvals shall be in full force and effect or (ii) stating that no such
consents, licenses and approvals are so required;
(g) No Litigation. Confirmation that there is no pending or, to its
knowledge after due inquiry, threatened action or proceeding affecting such
Seller or any of its Subsidiaries before any Governmental Authority that
could reasonably be expected to have a Material Adverse Effect;
-20-
<PAGE>
(h) Lockboxes. A Lockbox Account with respect to Receivables to be
sold by such Seller shall have been established in the name of the
Purchaser, each invoice issued to an Obligor on and after the related
Seller Addition Date shall indicate that payments in respect of its
Receivable shall be made by such Obligor to a Lockbox Account or by wire
transfer or other electronic payment to a Lockbox Account or the Collection
Account and the Collection Agent shall have delivered with respect to each
Lockbox Account a Lockbox Agreement signed by the Purchaser, the
Administrative Agent and the applicable Lockbox Bank;
(i) UCC Certificate; UCC Financing Statements. Executed copies of such
proper financing statements (or other similar instruments), filed and
recorded at such Seller's expense prior to the related Seller Addition
Date, naming such Seller as the seller and the Purchaser as the purchaser
of the Receivables and the Related Security, in proper form for filing in
each jurisdiction in which the Purchaser (or any of its assignees) deems it
necessary or desirable to perfect the Purchaser's ownership interest in all
Receivables and Related Security under the UCC or any comparable law of
such jurisdiction;
(j) UCC Searches. Written search reports, listing all effective
financing statements (or other similar instruments) that name such Seller
as debtor or assignor and that are filed in the jurisdictions in which
filings were made pursuant to subsection (i) above and in any other
jurisdictions that the Purchaser (or any of its assignees) determines are
necessary or appropriate, together with copies of such financing statements
(none of which, except for those described in subsection (i) above, shall
cover any Receivables or Related Security), and tax and judgment lien
searches showing no liens that are not permitted by the Transaction
Documents;
(k) List of Obligors. A microfiche, typed or printed list or other
tangible evidence reasonably acceptable to the Purchaser showing, as of a
date acceptable to the Purchaser prior to the related Seller Addition Date,
the Obligors whose Receivables are to be transferred to the Purchaser and
the balance of the Receivables with respect to each such Obligor as of such
date;
(l) Back-up Servicing Arrangements. Evidence that such Seller
maintains disaster recovery systems or back-up computer or other
information management systems that, in the Purchaser's, the Administrative
Agent's and each Funding Agent's reasonable judgment, are sufficient to
protect such Seller's business against material interruption or loss or
destruction of its primary computer and information management systems;
(m) Systems. Evidence, reasonably satisfactory to the Purchaser, the
Administrative Agent and each Funding Agent, that such additional Seller's
systems, pro-
-21-
<PAGE>
cedures and record keeping relating to the Receivables remain in all
material respects sufficient and satisfactory in order to permit the
purchase and administration of the Receivables in accordance with the terms
and intent of this Agreement;
(n) Opinions. The Transferor shall have received (i) legal opinions on
behalf of such Seller as to general corporate matters (including an opinion
as to the perfection and priority of the Transferor's interest in the
Receivables) and (ii) a certificate from a Responsible Officer of such
Seller stating that the Specified Bankruptcy Opinion Provisions are also
true and correct as to such Seller as of the Seller Addition Date, all in
form and substance reasonably satisfactory to the Administrative Agent and
the Funding Agents; and
(o) Other. Such other approvals or documents as the Purchaser (or any
of its assignees) may reasonably request from such additional Seller,
including, but not limited to, a pro-forma Deposit Report and Settlement
Statement incorporating the receivables data of such additional Seller.
ARTICLE VIII
Term and Termination
SECTION 8.01. Term. This Agreement shall commence as of the first day on
which all of the conditions precedent as set out in Section 7.01 have been
satisfied and shall continue in full force and effect until the earlier of (i)
the date designated by the Purchaser or the Sellers as the Purchase Termination
Date at any time following ten (10) days' written notice to the other (with a
copy thereof to the Administrative Agent), (ii) the date on which the
Administrative Agent, on behalf of the CP Conduit Purchasers, the Funding Agents
and the Committed Purchasers, declares a Termination Event pursuant to the
Receivables Transfer Agreement, (iii) upon the occurrence of an Event of
Bankruptcy with respect to either the Purchaser or any of the Sellers or (iv)
the date on which either the Purchaser or any of the Sellers becomes unable for
any reason to purchase or repurchase, respectively, any Receivable in accordance
with the provisions of this Agreement or defaults on its obligations hereunder,
which default continues unremedied for more than ten (10) days after written
notice to the defaulting party (any such date being a "Purchase Termination
Date"); provided, however, that the termination of this Agreement pursuant to
this Section 8.01 hereof shall not discharge any Person from any obligations
incurred prior to such termination, including, without limitation, any
obligations to make any payments with respect to any Receivable sold prior to
such termination.
SECTION 8.02. Effect of Termination. Following the termination of this
Agreement pursuant to Section 8.01, the Sellers shall not sell, and the
Purchaser shall not purchase, any Receivables. No
-22-
<PAGE>
termination, rejection or failure to assume the executory obligations of this
Agreement in any Event of Bankruptcy with respect to the Sellers or the
Purchaser shall be deemed to impair or affect the obligations pertaining to any
executed sale or executed obligations, including, without limitation,
pre-termination breaches of representations and warranties by the Sellers or the
Purchaser. Without limiting the foregoing, prior to termination, the failure of
the Sellers to deliver computer records of Receivables or any reports regarding
the Receivables shall not render such transfer or obligation executory, nor
shall the continued duties of the parties pursuant to this Agreement render an
executed sale executory.
SECTION 8.03. Termination of Sellers and Seller Divisions. (a) MascoTech
hereby covenants and agrees with the Purchaser that MascoTech shall not permit
any Seller at any time to cease to be a wholly-owned Subsidiary of MascoTech,
except as provided in the following paragraph (b).
(b) If MascoTech wishes to permit any Seller to cease to be a
wholly-owned Subsidiary of MascoTech or terminate the sales of Receivables
hereunder by any Seller or Seller Division, then MascoTech shall submit a
request (a "Seller Termination Request") to such effect in writing to the
Purchaser, which request shall be accompanied by a certificate prepared by a
Responsible Officer of the Collection Agent indicating the Purchased Receivables
Percentage applicable to such Seller (or Seller Division) as of the date of
submission of such request (the "Seller Termination Request Date"). Subject to
the terms and provisions hereof and of the Receivables Transfer Agreement, the
relevant Seller (or Seller Division) shall be terminated as a Seller (or Seller
Division) hereunder immediately upon the consummation of the transaction in
connection with which such Seller ceases to be a wholly-owned Subsidiary of
MascoTech or in the case of a Seller Division upon the satisfaction of any
applicable conditions in the Receivables Transfer Agreement. From and after the
date any such Seller (or Seller Division) is terminated as a Seller (or Seller
Division) pursuant to this subsection, the Seller (or Seller Division) shall
cease selling, and the Purchaser shall cease buying, Receivables and Related
Security from such Seller (or Seller Division) and a Purchase Termination Date
shall be deemed to have occurred with respect to such Seller (or Seller
Division).
(c) A terminated Seller (or Seller Division) shall have no further
obligation under any Transaction Document, other than pursuant to Sections
5.01(q), 6.01 and 6.02 of this Agreement, with respect to Receivables previously
sold by it to the Purchaser.
-23-
<PAGE>
ARTICLE IX
Miscellaneous Provisions
SECTION 9.01. Amendments, Etc. This Agreement and the rights and
obligations of the parties hereunder may not be amended, supplemented, waived or
otherwise modified and no consent to any such amendment, supplement, waiver or
modification may be given except in an instrument in writing signed by the
Purchaser and the Sellers and consented to in writing by the Administrative
Agent (with the consent of the Required Committed Purchasers). Any reconveyance
executed in accordance with Section 5.01(q), 6.01 or 6.02 hereof shall not be
considered an amendment or modification to this Agreement.
SECTION 9.02. Governing Law; Submission to Jurisdiction.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York except to the extent that the validity or
perfection of the Purchaser's ownership of or security interest in the
Receivables, or remedies hereunder in respect thereof, are governed by the laws
of a jurisdiction other than the State of New York.
(b) The parties hereto hereby submit to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of
any New York state court sitting in The City of New York for purposes of all
legal proceedings arising out of or relating to this agreement or the
transactions contemplated hereby. Each party hereto hereby irrevocably waives,
to the fullest extent it may effectively do so, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum. Nothing in this Section 9.02 shall affect
the right of the Purchaser to bring any other action or proceeding against any
of the Sellers or its property in the courts of other jurisdictions.
SECTION 9.03. Notices. (a) All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, return receipt requested,
or telecopied to:
(a) in the case of the Purchaser:
MTSPC, Inc.
21001 Van Born Road
Taylor, MI 48180
-24-
<PAGE>
Attention: President
Telecopy: (313) 792-6940
(b) in the case of the Sellers to the address set
forth on Schedule I; and
in each case, with a copy to:
THE CHASE MANHATTAN BANK,
as Administrative Agent
450 W. 33rd Street, 15th Floor
New York, New York 10001
Attention: Lara Graff
Telecopy: (212) 946-8098
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party.
(b) Notices and communications by facsimile shall be effective upon
receipt.
SECTION 9.04. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
SECTION 9.05. Assignment. This Agreement may not be assigned by the parties
hereto, except that the Purchaser may assign its rights hereunder pursuant to
the Receivables Transfer Agreement to the Administrative Agent for the benefit
of the CP Conduit Purchasers, the Funding Agents and the Committed Purchasers as
security for the Purchaser's repayment obligations under the Receivables
Transfer Agreement and the Asset Purchase Agreement. The Purchaser hereby
notifies the Sellers, and the Sellers hereby acknowledge and agree, that the
Purchaser, pursuant to the Receivables Transfer Agreement, has assigned its
rights (but not its obligations) hereunder to the Administrative Agent for the
benefit of the CP Conduit Purchasers and the Committed Purchasers and that the
representations, warranties, covenants and agreements of the Sellers contained
in this Agreement and the rights, powers and remedies of the Purchaser under
this Agreement are intended to benefit the CP Conduit Purchasers and the
Committed Purchasers and will be directly enforceable by the Administrative
Agent on their behalf. All rights, powers and remedies of the Purchaser
hereunder may be exercised by the Administrative Agent to the extent of its
rights hereunder and under the other Transaction Documents.
-25-
<PAGE>
SECTION 9.06. Further Assurances. The Purchaser and the Sellers agree to do
and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other party more
fully to effect the purposes of this Agreement and the other Transaction
Documents, including, without limitation, the execution of any financing
statements or continuation statements or equivalent documents relating to the
Receivables for filing under the provisions of the Relevant UCC or other laws of
any applicable jurisdiction.
SECTION 9.07. No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Purchaser, the Sellers or the
Administrative Agent, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exhaustive of any rights, remedies, powers and privilege provided by law.
SECTION 9.08. Counterparts. (a) This Agreement may be executed in two or
more counterparts thereof (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
(b) Delivery of an executed counterpart of a signature page to this
Agreement by facsimile shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.09. Binding Effect; Third-Party Beneficiaries. This Agreement and
the other Transaction Documents will inure to the benefit of and be binding upon
the parties hereto and their respective successors, transferees and permitted
assigns. The CP Conduit Purchasers, the Funding Agents, Committed Purchasers and
the Administrative Agent are each intended by the parties hereto to be
third-party beneficiaries of this Agreement.
SECTION 9.10. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement and the other Transaction Documents set forth
the entire understanding of the parties relating to the subject matter hereof,
and all prior understandings, written or oral, are superseded by this Agreement
and the other Transaction Documents.
-26-
<PAGE>
SECTION 9.11. Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
SECTION 9.12. Exhibits. The schedules and exhibits referred to herein shall
constitute a part of this Agreement and are incorporated into this Agreement for
all purposes.
SECTION 9.13. Addition of Sellers. Subject to the terms and conditions
hereof, from time to time one or more wholly-owned direct or indirect
Subsidiaries of MascoTech may become additional Seller parties hereto. If any
such Subsidiary wishes to become an additional Seller, MascoTech shall submit a
request to such effect in writing to the Purchaser, the Administrative Agent,
the Funding Agents and each Rating Agency. If MascoTech, the Purchaser, the
Administrative Agent, each Funding Agent and each Rating Agency shall have
agreed to any such request (such consent not to be unreasonably withheld or
delayed from the date such request is received and such consent of each Funding
Agent being obtained by the Administrative Agent), such wholly-owned Subsidiary
shall become an additional Seller party hereto on the related Seller Addition
Date upon satisfaction of the conditions set forth in Section 7.02.
SECTION 9.14. Confidentiality. (a) Each of MascoTech, the Sellers and the
Purchaser shall maintain, and shall cause each officer, employee and agent of
itself and its Affiliates to maintain, the confidentiality of this Agreement,
the other Transaction Documents and all other confidential proprietary
information with respect to the other parties and each of their respective
businesses obtained by them in connection with the structuring, negotiation and
execution of the transactions contemplated herein and in the other Transaction
Documents, except for information that has become publicly available or
information disclosed (i) to legal counsel, accountants and other professional
advisors to the parties and their Affiliates, (ii) as required by law,
regulation or legal process (including in connection with any registration
Statement or other filing made with the SEC); or (iii) in connection with any
legal or regulatory proceeding to which the parties or any of their Affiliates
is subject. Each of the parties hereby consents to the disclosure of any
nonpublic information with respect to it received by any CP Conduit Purchaser,
any Committed Purchaser, any Funding Agent or the Administrative Agent to (i)
any of the CP Conduit Purchasers, Committed Purchasers, Funding Agents or the
Administrative Agent, (ii) any nationally recognized rating agency providing a
rating or proposing to provide a rating to the CP Conduit Purchasers' Commercial
Paper, (iii) any placement agent which proposes to offer and sell the CP Conduit
Purchasers' Commercial Paper, (iv) any provider of the CP Conduit Purchasers'
program-wide liquidity or credit support facilities, (v) any potential Committed
Purchaser or (vi) any Participant or potential Participant.
-27-
<PAGE>
(b) Each of the parties hereto shall maintain, and shall cause each
officer, employee and agent of itself and its Affiliates to maintain, the
confidentiality of the Transaction Documents and all other confidential
proprietary information with respect to the CP Conduit Purchasers, the Committed
Purchasers, the Funding Agents and the Administrative Agent and each of their
respective businesses obtained by them in connection with the structuring,
negotiation and execution of the transactions contemplated herein and in the
other Transaction Documents, except for information that has become publicly
available or information disclosed (i) to legal counsel, accountants and other
professional advisors to the parties and their Affiliates, (ii) as required by
law, regulation or legal process (including in connection with any registration
Statement or other filing made with the SEC) or (iii) in connection with any
legal or regulatory proceeding to which the parties or any of their Affiliates
is subject.
-28-
<PAGE>
IN WITNESS WHEREOF, the Purchaser and the Sellers each have caused this
Receivables Purchase Agreement to be duly executed by their respective officers
as of the day and year first above written.
MASCOTECH, INC.
By:
--------------------------------------------
Name:
Title:
As Sellers:
Beaumont Bolt & Gasket, Inc.,
Compac Corporation,
Cuyam Corporation,
Draw-Tite, Inc.,
Fulton Performance Products, Inc.,
Hitch'N Post, Inc.,
Industrial Bolt & Gasket, Inc.,
Lake Erie Screw Corporation,
Lamons Metal Gasket Co.,
Louisiana Hose & Rubber Co.,
MascoTech Forming Technologies-Fort
Wayne, Inc.,
MascoTech Sintered Components, Inc.,
MascoTech Sintered Components of
Indiana, Inc.,
MascoTech Tubular Products, Inc.,
Metalync Company LLC,
Netcong Investments, Inc.,
Reese Products, Inc.,
Rieke Corporation,
Rieke Leasing Co., Incorporated,
Rieke of Indiana, Inc.,
TriMas Fasteners, Inc.,
Windfall Products, Inc.
By:
--------------------------------------------
Name:
Title:
-29-
<PAGE>
As Purchaser:
MTSPC, INC.
By:
--------------------------------------------
Name:
Title:
Acknowledged and agreed as
of the date first above written:
THE CHASE MANHATTAN BANK,
as Administrative Agent for the benefit
of the several CP Conduit Purchasers,
Funding Agents and the Committed Purchasers
By:
------------------------------------------
Name:
Title:
-30-
<PAGE>
EXHIBIT A
FORM OF SUBORDINATED NOTE
__________, 2000
FOR VALUE RECEIVED, the undersigned, MTSPC, INC., a Delaware corporation
(the "Maker"), hereby promises to pay to the order of MascoTech, Inc., a
Delaware corporation (the "Payee"), as Agent for the Sellers under the
Receivables Purchase Agreement referred to below, on __________, ____ or earlier
as provided for in the Receivables Purchase Agreement dated as of the date
hereof between the Maker, the Payee and the Sellers (as such agreement may from
time to time be amended, supplemented or otherwise modified and in effect, the
"Receivables Purchase Agreement"), the aggregate unpaid principal amount of all
Advances to the Maker from the Sellers pursuant to the terms of the Receivables
Purchase Agreement, in lawful money of the United States of America in
immediately available funds, and to pay interest from the date thereof on the
principal amount hereof from the date of this Note continuing until such
principal balance shall be paid in full, in like funds, at an office designated
by the Payee. Accrued and unpaid interest shall be payable in arrears on the
last Business Day of each calendar month (each day, an "Interest Payment Date").
Interest shall be payable at the initial rate of [11.5]% per annum,
adjusted monthly on each Interest Payment Date, for the month commencing on such
Interest Payment Date, to the sum of Prime Rate then in effect plus 2%. With
respect to any Interest Payment Date, the "Prime Rate" shall be the prime rate
as reported in The Wall Street Journal on such Interest Payment Date (or, if The
Wall Street Journal is not published on such Interest Payment Date, the Business
Day next succeeding such Interest Payment Date on which The Wall Street Journal
is published.) If The Wall Street Journal shall no longer be published or if it
shall cease to report a prime rate, the "Prime Rate" shall be the rate publicly
announced by The Chase Manhattan Bank, New York Branch, on such Interest Payment
Date as its base commercial lending rate. If any Interest Payment Date shall not
be a Business Day, then such Interest Payment Date shall be deemed to occur on
the next following Business Day, but no additional interest shall be payable. A
"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York, New York or , are required or authorized by
law to be closed.
The undersigned, for itself and its legal representatives, successors and
assigns, and any others who may at any time become liable for payment hereunder,
hereby (a) consents to any and all extensions of time, renewals, waivers, or
modifications, if any, that may be granted or consented to by the Payee with
regard to the time of payment hereunder or any other provisions hereof.
A-1
<PAGE>
The Maker hereby waives diligence, presentment, demand, protest, notice of
dishonor and notice of nonpayment. The non-exercise by the holder hereof of any
of its rights, powers or remedies hereunder or thereafter available in law, in
equity, by statute or otherwise in any particular instance shall not constitute
a waiver thereof in that or any subsequent instance.
All borrowings evidenced by this Subordinated Note and all payments and
prepayments of the principal hereof and interest hereon and the respective dates
thereof shall be endorsed by the holder hereof on the schedule attached hereto
and made a part hereof, or on a continuation thereof which shall be attached
hereto and made a part hereof, or otherwise recorded by such holder in its
internal records; provided, however, that the failure of the holder hereof to
make such a notation or any error in such a notation shall not in any manner
affect the obligation of the Maker to make payments of principal and interest in
accordance with the terms of this Subordinated Note and the Receivables Purchase
Agreement.
The Maker shall have the right to subject to the limitations set forth in
the Receivables Purchase Agreement, reborrow Advances made to it without penalty
or premium.
This Note may be prepaid in full, or from time to time in part, at any
time. All payments received under this Note shall be applied first to accrued
interest and the remainder, if any, to the principal amount hereunder.
This Subordinated Note is the Subordinated Note referred to in the
Receivables Purchase Agreement, which, among other things, contains provisions
for the subordination of this Subordinated Note to the rights of certain parties
under the Receivables Transfer Agreement, all upon the terms and conditions
specified therein and as specified on Schedule II to this Subordinated Note.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in, or incorporated by reference into, the
Receivables Purchase Agreement.
This Subordinated Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
A-2
<PAGE>
IN WITNESS WHEREOF, the Maker has caused this Note to be signed in its
corporate name by the officer thereunto duly authorized, and to be dated as of
the date first above written.
MTSPC, INC.
By:
-------------------------------------------
Name:
Title:
A-3
<PAGE>
SCHEDULE I TO
SUBORDINATED NOTE
<TABLE>
<CAPTION>
Advances and Payments
<S> <C> <C> <C> <C>
Amount of Payments Unpaid Principal Name of Person
Date Advance Principal/Interest Balance of Note Making Notation
</TABLE>
<PAGE>
SCHEDULE II TO
SUBORDINATED NOTE
SUBORDINATION
Section 1. Agreement to Subordinate. (a) The Maker for itself and its
successors covenants and agrees, and the Payee, by its acceptance of this Note,
likewise covenants and agrees, that the indebtedness represented by this Note
and the payment of the principal of and interest on this Note is hereby
expressly subordinated, to the extent and in the manner hereinafter set forth,
to the prior payment in full of all Senior Indebtedness (as defined in Section
l(b) below). This Schedule II shall constitute a continuing offer and inducement
to all Persons who become holders of, or continue to hold, Senior Indebtedness.
The provisions of this Schedule II are made for the benefit of the holders of
Senior Indebtedness, each of whom is an obligee hereunder and is entitled to
enforce such holders' rights hereunder, without any act or notice of acceptance
hereof or reliance hereon. No amendment, modification or discharge of any
provision of this Schedule II shall be effective against any holder of Senior
Indebtedness unless expressly consented to in writing by such holder. The
provisions of this Schedule II apply notwithstanding anything to the contrary
contained in this Note.
(b) "Senior Indebtedness" means all indebtedness incurred, assumed or
guaranteed, directly or indirectly, by the Maker, either before, on, or after
the date hereof without any limitation as to the amount or terms thereof, and
whether such indebtedness (including, but not limited to, interest on any such
indebtedness) arises or accrues before or after the commencement of any
bankruptcy, insolvency or receivership proceedings, including (1) all
obligations of the Maker to the Administrative Agent, the CP Conduit Purchasers,
the Funding Agents and the Committed Purchasers (as such terms are defined
below) incurred pursuant to the Receivables Transfer Agreement dated as of
November 28, 2000 (as amended, supplemented or otherwise modified from time to
time, the "Receivables Transfer Agreement"), among the Maker, the CP Conduit
Purchasers, the Committed Purchasers, the Funding Agents, The Chase Manhattan
Bank, as administrative agent (the "Administrative Agent"), and the Payee,
individually, as collection agent (in such capacity, the "Collection Agent") and
as Guarantor, including all fees, expenses, indemnities and any other amounts
payable pursuant to the Receivables Transfer Agreement. Senior Indebtedness
shall continue to constitute Senior Indebtedness for all purposes of this Note,
and the provisions of this Schedule II shall continue to apply to such Senior
Indebtedness, notwithstanding the fact that such Senior Indebtedness or any
claim in respect thereof shall be disallowed, avoided or subordinated pursuant
to the provisions of the United States Bankruptcy Code or other applicable law.
Section 2. Subordination of this Note. In the event of any dissolution,
winding-up, liquidation or reorganization of the Maker (whether voluntary or
involuntary and whether in bankruptcy, insolvency or receivership proceedings,
or upon an assignment for the
<PAGE>
benefit of creditors or any other marshaling of the assets and liabilities of
the Maker or otherwise), the Maker and the Payee, by its acceptance hereof,
covenant and agree that:
(a) all Senior Indebtedness shall first be paid in full, before any
payment or distribution is made upon the principal of or interest on this
Note:
(b) any payment or distribution of assets of the Maker or from the
estate created by the commencement of any such proceeding, whether in cash,
property or securities to which the Payee would be entitled except for the
provisions of this Schedule II (including any such payments or
distributions which may be payable or deliverable by reason of the payment
of any other indebtedness of the Maker being subordinated to the payment of
this Note), shall be paid or delivered by the Maker or any receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making
such payment or distribution directly to the holders of Senior Indebtedness
or their representative or representatives or to the trustee or trustees
under any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay in full all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness, before any payment
or distribution is made to the Payee; and
(c) in the event that any payment or distribution of cash, property or
securities shall be received by the Payee in contravention of subsection
(a) or (b) of this Section 2 (including any such payments or distributions
which may be payable or deliverable by reason of the payment of any other
indebtedness of the Maker being subordinated to payment of this Note)
before all Senior Indebtedness is paid in full, such payment or
distribution shall be held for the benefit of and shall be paid over to the
holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture under
which any instrument evidencing any Senior Indebtedness may have been
issued, as their respective interests may appear, to the extent necessary
to pay in full all Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution to the holders of Senior
Indebtedness.
The Maker shall give prompt written notice to the Payee of any dissolution,
winding-up, liquidation or reorganization of the Maker or any assignment for the
benefit of creditors.
Section 3. Subrogation; Enforcement. Subject to and only after the payment
in full of all Senior Indebtedness at the time outstanding, the Payee shall be
subrogated to the rights of the holders of Senior Indebtedness (to the extent of
payments or distributions previously made to such holders of Senior Indebtedness
pursuant to the provisions of Section 2 and
-2-
<PAGE>
equally and ratably with the holders of all indebtedness of the Maker which by
its express terms is subordinated to indebtedness of the Maker to substantially
the same extent as this Note is subordinated and is entitled to like rights of
subrogation) to receive payments or distributions of assets of the Maker
applicable to the Senior Indebtedness until amounts owing on this Note shall be
paid in full. No payments or distributions to the holders of Senior Indebtedness
of any cash, property or securities to which the Payee would be entitled except
for the provisions of this Schedule II, and no payment over pursuant to the
provisions of this Schedule II to holders of Senior Indebtedness by the Payee,
shall as between the Maker, its creditors other than the holders of Senior
Indebtedness and the Payee be deemed to be a payment by the Maker to or for the
account of the holders of Senior Indebtedness, it being understood that the
provisions of this Schedule II are intended solely for the purpose of defining
the relative rights of the Payee, on the one hand, and the holders of the Senior
Indebtedness, on the other hand, and nothing contained in this Schedule II or
elsewhere in this Note is intended to or shall impair the obligation of the
Maker, which is absolute and unconditional, to pay to the Payee, subject to the
rights of the holders of Senior Indebtedness, the principal of and interest on
this Note as and when the same shall become due and payable in accordance with
its terms, or is intended to or shall effect the relative rights of the Payee
and creditors of the Maker other than the holders of the Senior Indebtedness,
nor shall anything herein or therein prevent the Payee from exercising all
remedies otherwise permitted by applicable law upon default under this Note,
subject to the rights, if any, under this Schedule II, of the holders of Senior
Indebtedness in respect of cash, property or securities of the Maker received
upon the exercise of any such remedy.
The Payee by its acceptance hereof: (i) if and so long as payment with
respect to this Note is prohibited under this Schedule II, irrevocably
authorizes and empowers (but without imposing any obligation on, or any duty to
the Payee from) each holder of Senior Indebtedness at any time outstanding and
such holder's representatives, to demand, sue for, collect, receive and receipt
for the Payee's payments and distributions in respect of this Note (including,
without limitation, all payments and distributions which may be payable or
deliverable pursuant to the terms of any indebtedness subordinated to this Note
which are required to be paid or delivered to the holders of Senior Indebtedness
as provided in this Schedule II and to file and prove all claims therefor and
all such other action (including the right to vote, file and prove claims
respecting any indebtedness subordinated to this Note), as such holder of Senior
Indebtedness or such holder's representatives, may determine to be necessary or
appropriate for the enforcement of the provisions of this Schedule II; and (ii)
agrees to execute and to deliver to each holder of Senior Indebtedness and such
holder's representatives all such further instruments confirming the
authorization hereinabove set forth, and all such powers of attorney, proofs of
claim, assignments of claim and other instruments, and to take all such other
action that may be requested by such holder of Senior Indebtedness or such
holder's representatives in order to enable such holder to enforce all claims
upon or in respect of the Payee's payments and distributions in respect of this
Note and so long as there is Senior Indebtedness outstanding, not to compromise,
release, forgive or otherwise discharge the obli-
-3-
<PAGE>
gations of the Maker with respect to this Note. For purposes of this Note,
Senior Indebtedness shall be deemed to be outstanding until the Receivables
Transfer Agreement is no longer in effect.
Section 4. Reliance on Court Orders. Upon any payment or distribution of
assets of the Maker referred to in Section 2, the Payee shall be entitled to
rely upon a certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making such payment or distribution, delivered to
the Payee, for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of Senior Indebtedness and other indebtedness
of the Maker, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Schedule
II.
The Payee owes no fiduciary duty to the holders of Senior Indebtedness and
the Payee undertakes to perform or to observe only such covenants and
obligations as are specifically set forth in this Note and no implied covenants
and obligations with respect to holders of Senior Indebtedness shall be read
into this Note against the Payee.
Section 5. Payments Upon Default in Payment of Senior Indebtedness and
During Senior Indebtedness Default. The Maker shall not make any payment with
respect to this Note if and so long as:
(1) any Senior Indebtedness is or becomes due and payable (whether at
maturity, for an installment of principal or interest, upon acceleration,
for mandatory prepayment, or otherwise) and remains unpaid; or
(2) any Senior Indebtedness Default (as defined below) has occurred
and has not been cured or waived in conformity with the terms of the
instrument, indenture or agreement governing such Senior Indebtedness; or
(3) a payment by the Maker with respect to this Note would,
immediately after giving effect thereto, result in a Senior Indebtedness
Default.
A payment with respect to this Note shall include, without limitation,
payment of principal of and interest on this Note, purchase of this Note by the
Maker and any other payment.
"Senior Indebtedness Default" means the failure to make any payment of any
Senior Indebtedness when due or the happening of an event of default with
respect to any Senior Indebtedness, as defined therein or in the instrument
under which the same is outstanding which, by its terms, if occurring prior to
the stated maturity of such Senior Indebtedness, permits or with the giving of
notice or lapse of time (or both) would permit any holder thereof, any group of
such holders or any trustee or representative for such holders thereupon to
accelerate the maturity thereof or results in such acceleration, including,
without limitation,
-4-
<PAGE>
a "Termination Event" or "Potential Termination Event" as defined in the
Receivables Transfer Agreement, whether or not such Senior Indebtedness or
instrument has been avoided, disallowed or subordinated.
In the event that, notwithstanding the foregoing, any payment or
distribution of cash, property or securities shall be received or collected by
the Payee in contravention of this Section 5 or if and as long as payment with
respect to this Note is prohibited under this Schedule II, and except as
otherwise expressly provided in Sections 6 and 7 below, such payment or
distribution shall be held for the benefit of and shall be paid over to the
holders of Senior Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture under which any instrument
evidencing Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay in full all Senior
Indebtedness then due, after giving effect to any concurrent payment to the
holders of Senior Indebtedness.
Section 6. Payee Entitled to Presume Payments Permitted in Absence of
Notice. Unless and until written notice shall be received by the Payee from any
holder of Senior Indebtedness notifying the Payee of the existence of one or
more of the circumstances which would prohibit the making of any payment with
respect to this Note under the provisions of Section 5 and stating that it is a
"Notice of Senior Indebtedness Default", the Payee shall be entitled to assume
that no such circumstances exist. From and after the receipt by the Payee of
such Notice the Payee shall, so long as Senior Indebtedness shall be outstanding
(but not thereafter), assume that such circumstances continue to exist unless
and until the Payee receives a notice from the holder of such Senior
Indebtedness to which such default relates stating that such holder has received
evidence satisfactory to it that such circumstances have been cured or waived
and stating that it is a "Notice of Cure or Waiver of Senior Indebtedness
Default."
Section 7. Application by Payee of Moneys Deposited With It. Any funds
deposited with or collected by the Payee in respect of this Note shall be
subject to the provisions of this Schedule II, except that, if immediately prior
to the date on which by the terms of this Note any such funds may become payable
for any purpose (including, without limitation, the payment of either the
principal of or the interest on this Note), the Payee shall not have received
with respect to such finds the Notice of Senior Indebtedness Default provided
for in Section 6, then the Payee shall have full power and authority to receive
such funds and to apply the same to the purpose for which they were received and
shall not be affected with respect to such funds by any Notice of Senior
Indebtedness default to the contrary which may be received by the Payee on or
after such date.
Section 8. Obligation not Affected. Except as expressly provided in this
Schedule II, nothing contained in this Schedule II or elsewhere in this Note
shall affect the
-5-
<PAGE>
obligation of the Maker to make payments of the principal of or interest on this
Note at any time in accordance with the provisions hereof.
Section 9. No Waiver. No right of any present or future holder of any
Senior Indebtedness of the Maker to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act of or failure
to act on the part of the Maker or the Payee or by any act or failure to act, by
any such holder, or by any noncompliance by the Maker or the Payee with the
terms, provisions and covenants of this Note, regardless of any knowledge
thereof which any such holder may have or be otherwise charged with. The holders
of Senior Indebtedness may extend, renew, modify or amend the terms of the
Senior Indebtedness or any security therefor or guaranty thereof and release,
sell or exchange or enforce such security or guaranty or elect any right or
remedy, or delay in enforcing or release any right or remedy and otherwise deal
freely with the Maker all without notice to the Payee and all without affecting
the liabilities and obligations of the Payee, even if any right of reimbursement
or subrogation or other right or remedy of the Payee is extinguished, affected
or impaired thereby. No provision of any supplemental indenture which affects
the superior position of the holders of Senior Indebtedness shall be effective
against the holders of Senior Indebtedness who have not consented thereto.
Section 10. Effectuation of Subordination by the Payee. The Payee, by his
acceptance of this Note, agrees to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Schedule II.
Section 11. Notice to Maker. The Payee shall promptly advise the Maker of
any notice, presentation or demand, as the case may be, received by the Payee
from holders of Senior Indebtedness.
Section 12. Payee to Presume Outstanding Senior Indebtedness in Absence of
Notice. Unless and until written notice shall be given to the Payee by the Maker
and the Funding Agent notifying the Payee that Senior Indebtedness is no longer
outstanding, the Payee shall assume that Senior Indebtedness is outstanding. The
Maker agrees to give, and to cause the Funding Agent to give, such notice to the
Payee promptly after the first date on which no Senior Indebtedness shall be
outstanding.
-6-
<PAGE>
EXHIBIT B TO
RECEIVABLES PURCHASE AGREEMENT
Litigation
B-1
<PAGE>
EXHIBIT C TO
RECEIVABLES PURCHASE AGREEMENT
[FORM OF ADDITIONAL SELLER SUPPLEMENT]
SUPPLEMENT, dated [ 1, to the Receivables Purchase Agreement, dated as of
November 28, 2000 (as amended, supplemented or otherwise modified from time to
time in accordance with its terms, the "Receivables Purchase Agreement"), among
MascoTech, Inc. ("MascoTech"), the Sellers named on Schedule I thereto or added
pursuant to a prior Additional Seller Supplement and MTSPC, Inc., as the
Purchaser.
W I T N E S S E T H:
WHEREAS, the Receivables Purchase Agreement provides that any wholly-owned
direct or indirect Subsidiary of MascoTech, although not originally a Seller
thereunder, may become a Seller under the Receivables Purchase Agreement upon
the satisfaction of each of the conditions precedent set forth in Sections 7.02
and 9.13 of the Receivables Purchase Agreement;
WHEREAS, the undersigned was not an original Seller under the Receivables
Purchase Agreement but now desires to become a Seller thereunder.
NOW, THEREFORE, the undersigned hereby agrees as follows:
The undersigned agrees to be bound by all of the provisions of the
Receivables Purchase Agreement applicable to a Seller thereunder and agrees that
it shall, on the date this Supplement is accepted by MascoTech, the Purchaser,
the Administrative Agent and each Funding Agent and each of the conditions
precedent set forth in Section 7.02 of the Receivables Purchase Agreement have
been satisfied, become a Seller for all purposes of the Receivables Purchase
Agreement to the same extent as if originally a party thereto.
C-1
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.
[Insert name of Seller]
By:
--------------------------------------------
Name:
Title:
[address]
Accepted as of the date first above written:
MASCOTECH
By:
------------------------------------------
Name:
Title:
Accepted as of the date first above written:
MTSPC, INC.
By:
------------------------------------------
Name:
Title:
Acknowledged as of the date first above written:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
------------------------------------------
Name:
Title:
C-2
<PAGE>
THE CHASE MANHATTAN BANK,
as Funding Agent for PARCO
By:
------------------------------------------
Name:
Title:
[Add other Funding Agents]
C-3
<PAGE>
SCHEDULE I TO
RECEIVABLES PURCHASE AGREEMENT
Location of Each Seller's Chief Executive Office
