Exhibit 10.6
EXECUTION COPY
AMENDMENT NO. 1 dated as of April 1, 2005
(this "Amendment") to the RECEIVABLES PURCHASE
AGREEMENT dated as of November 30, 2004, as amended
through the date hereof (the "Agreement"), among
Affinia Receivables LLC, a Delaware limited liability
company ("Finance Subsidiary"), Affinia Group Inc., a
Delaware corporation ("Affinia Group"), as initial
Servicer (the "Servicer" and Performance Guarantor,
and together with Finance Subsidiary, the "Seller
Parties" and each a "Seller Party"), the entities
identified on the signature pages thereto as a
"Financial Institution" (together with any of their
respective successors and assigns thereunder, the
"Financial Institutions"), Park Avenue Receivables
Company LLC ("Conduit", and together with the
Financial Institutions, the "Purchasers") and
JPMorgan Chase Bank, N.A., as agent for the
Purchasers thereunder or any successor agent
thereunder (together with its successors and assigns
thereunder, the "Agent").
The parties hereto hereby agree as follows:
SECTION 1. DEFINED TERMS. Capitalized terms used but not
otherwise defined herein will have the meanings as defined in the Agreement.
SECTION 2. AMENDMENTS TO DEFINITIONS. (a) The definition of
Default Trigger Ratio set forth in Schedule A to the Agreement is hereby amended
in its entirety to read as follows:
"Default Trigger Ratio" means, at any time, a percentage equal
to (i) the aggregate outstanding balance of all Adjusted
Receivables (other than Adjusted Receivables the Obligor of
which is an Affiliate of any Seller Party) which are more than
60 and less than 91 days past due as of the last day of the
most recently ended Accrual Period plus all Charged-Off
Receivables that are Adjusted Receivables (other than Adjusted
Receivables the Obligor of which is an Affiliate of any Seller
Party) written off during such Accrual Period, divided by (ii)
the aggregate outstanding balance of all Adjusted Receivables
(other than Adjusted Receivables the Obligor of which is an
Affiliate of any Seller Party) originated during the Accrual
Period which ended five Accrual Periods prior to such Accrual
Period.
(b) The definition of Delinquency Trigger Ratio set forth in
Schedule A to the Agreement is hereby amended in its entirety to read as
follows:
"Delinquency Trigger Ratio" means, at any time, a percentage
equal to (i) the aggregate outstanding balance of all Adjusted
Receivables (other than Adjusted Receivables the Obligor of
which is an Affiliate of any Seller Party) that were
Delinquent Receivables as of the last day of the most recently
ended Accrual Period, divided by (ii) the aggregate
outstanding balance of all Adjusted
Receivables (other than Adjusted Receivables the Obligor of
which is an Affiliate of any Seller Party) as of the end of
the most recently ended Accrual Period.
(c) The definition of Minimum Net Worth set forth in Schedule
A to the Agreement is hereby amended in its entirety to read as follows:
"Minimum Net Worth" means with respect to any Calculation
Period (as defined in the Receivables Sale Agreement), Net
Worth (as defined in the Receivables Sale Agreement) of at
least 3% of the Purchase Limit as of the end of such
Calculation Period.
(d) The definition of Restricted Junior Payment set forth in
Schedule A to the Agreement is hereby amended in its entirety to read as
follows:
"Restricted Junior Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of
any class of capital stock of Finance Subsidiary now or
hereafter outstanding, except a dividend payable solely in
shares of that class of stock or in any junior class of stock
of Finance Subsidiary, (ii) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition
for value, direct or indirect, of any shares of any class of
capital stock of Finance Subsidiary now or hereafter
outstanding, (iii) any payment or prepayment of principal of,
premium, if any, or interest, fees or other charges on or with
respect to, and any redemption, purchase, retirement,
defeasance, sinking fund or similar payment and any claim for
rescission with respect to the Capital Note and Intercompany
Note (each as defined in the Receivables Sale Agreement), (iv)
any payment made to redeem, purchase, repurchase or retire, or
to obtain the surrender of, any outstanding warrants, options
or other rights to acquire shares of any class of capital
stock of Finance Subsidiary now or hereafter outstanding, and
(v) any payment of management fees by Finance Subsidiary
(except for reasonable management fees to Affinia Group or any
Seller or any Affiliate thereof in reimbursement of actual
management services performed).
(e) The definition of Transaction Documents set forth in
Schedule A to the Agreement is hereby amended in its entirety to read as
follows:
"Transaction Documents" means, collectively, this Agreement,
the Performance Agreement, each Purchase Notice, the
Receivables Sale Agreement, each Control Agreement, the Fee
Letter, the Intercompany Note (as defined in the Receivables
Sale Agreement), the Capital Note (as defined in the
Receivables Sale Agreement), and all other instruments,
documents and agreements executed and delivered in connection
herewith.
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SECTION 3. AMENDMENTS TO THE AGREEMENT. (a) Affirmative
Covenants of the Seller Parties. Section 7.1(a)(i) of the Agreement is hereby
amended and restated in its entirety as follows:
(i) within 90 days after the end of each fiscal year of each
Seller Party (other than Finance Subsidiary), its audited consolidated
balance sheet and consolidated statements of income, retained earnings,
stockholders' equity and cash flows as of the end of and for such
fiscal year, and the related notes thereto, setting forth in each case
in comparative form the figures for the previous fiscal year, all
reported on by independent public accountants of recognized national
standing (without a "going concern" or like qualification or exception
and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and
results of operations of such Seller Party on a consolidated basis in
accordance with GAAP consistently applied;
(b) Affirmative Covenants of the Seller Parties. Section
7.1(a)(ii) of the Agreement is hereby amended and restated in its entirety as
follows:
(ii) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year of each Seller Party (other than
Finance Subsidiary), its consolidated balance sheet and consolidated
statements of income, retained earnings, stockholders' equity and cash
flows as of the end of and for such fiscal quarter and the then-elapsed
portion of the fiscal year, setting forth in each case in comparative
form the figures for the corresponding period or periods of (or, in the
case of the balance sheet, as of the end of) the previous fiscal year,
all certified by a Financial Officer as presenting fairly in all
material respects the financial condition and results of operations of
such Seller Party on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and
the absence of footnotes;
(c) Affirmative Covenants of the Seller Parties. Section
7.1(a)(vi) of the Agreement is hereby amended and restated in its entirety as
follows:
(iii) [reserved];
(d) Section 7.1(a)(vii) of the Agreement is hereby amended and
restated in its entirety as follows:
(iv) [reserved];
(e) Amortization Events. Section 9.1(a) of the Agreement is
hereby amended and restated in its entirety as follows:
(a) Any Seller Party shall fail (i) to make any payment or
deposit required hereunder when due and, for any such payment or
deposit which is not in respect of Capital, such failure continues for
three (3) days, (ii) to perform or observe any term, covenant or
agreement under Section 7.01(a) or (b) hereof, or (iii) to perform or
observe any term, covenant or agreement in this Agreement (other than
as referred to in
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clauses (i) and (ii) of this paragraph (a) and paragraph 9.1(e)) and
such failure shall continue for 30 consecutive Business Days.
(f) Amortization Events. Section 9.1(i) of the Agreement is
hereby amended and restated in its entirety as follows:
(i) As at the end of any calendar month, the average
Delinquency Trigger Ratio for the three (3) preceding calendar months
as reported in the applicable Monthly Reports exceeds 4.0%.
SECTION 4. GOVERNING LAW. This Amendment shall be governed and
construed in accordance with the laws of the State of New York.
SECTION 5. COUNTERPARTS. This Amendment may be executed in
counterparts, each of which will be an original, but all of which together will
constitute a single agreement.
SECTION 6. AGREEMENT IN FULL FORCE AND EFFECT. Except as
expressly amended hereby, the Agreement will continue in full force and effect
in accordance with the provisions thereof as in existence on the date hereof
After the date of the effectiveness hereof, any reference to the Agreement will
mean the Agreement as amended by this Amendment.
SECTION 7. CONDITIONS TO EFFECTIVENESS. This Amendment shall
be effective as of the date hereof, upon satisfaction on or prior to the date
hereof, of the following condition: this Amendment shall have been executed and
delivered by the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers as of the date hereof.
AFFINIA RECEIVABLES LLC
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Treasurer
PARK AVENUE RECEIVABLES COMPANY LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Authorized Signatory
JPMORGAN CHASE BANK, N.A., as a Financial
Institution and as Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Acknowledged on the date hereof by:
AFFINIA GROUP INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
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