Exhibit 10-m
FOURTH AMENDMENT TO AND WAIVER OF
SECOND AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
THIS FOURTH AMENDMENT (the "Amendment"), dated as of March 1, 2004, is
entered into among ArvinMeritor Receivables Corporation, a Delaware corporation
(the "Seller"), ArvinMeritor, Inc., an Indiana corporation (the "Initial
Collection Agent," and, together with any successor thereto, the "Collection
Agent"), the Related Committed Purchasers party hereto (the "Related Committed
Purchasers"), Credit Lyonnais, acting through its New York Branch, as agent for
the Purchasers (the "Agent") and as a Purchaser Agent, Bayerische Landesbank,
New York Branch ("BayernLB"), as a Purchaser Agent and ABN AMRO Bank N.V. ("ABN
AMRO"), as a Purchaser Agent.
Reference is hereby made to that certain Second Amended and Restated
Receivables Sale Agreement, dated as of September 26, 2002 (as amended,
supplemented or otherwise modified through the date hereof, the "Sale
Agreement"), among the Seller, the Initial Collection Agent, the Conduit
Purchasers from time to time party thereto, the Agent, BayernLB, ABN AMRO and
the other Purchaser Agents from time to time party thereto and the Related
Committed Purchasers from time to time party thereto. Terms used herein and not
otherwise defined herein which are defined in the Sale Agreement or the other
Transaction Documents (as defined in the Sale Agreement) shall have the same
meaning herein as defined therein.
For good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Section 3.3 of the Sale Agreement provides that if the Parent's
long-term unsecured debt rating from both ▇▇▇▇▇'▇ and S&P is less than Baa3 and
BBB-, the Collection Agent shall deliver a Periodic Report to the Agent and each
Purchaser Agent on or before Wednesday of each week for the immediately
preceding calendar week. As of the date hereof, the Collection Agent was not in
compliance with the terms of Section 3.3 because of the failure to deliver
Periodic Reports after a downgrade of the unsecured debt rating of the Parent
occurred (the "Existing Termination Event"). At the request of the Seller and
the Collection Agent, the Agent and the Purchaser Agents hereby waive the
Existing Termination Event so long as the Collection Agent commences delivery of
the Periodic Reports on a weekly basis on March 10, 2004. Notwithstanding
anything contained herein to the contrary, the foregoing waiver shall not become
effective unless and until the conditions precedent set forth in Section 3 have
been satisfied. The foregoing waiver is expressly limited to the written
statement in this Section 1.
Section 2. Subject to the following terms and conditions, including
without limitation the conditions precedent set forth in Section 3, upon
execution by the parties hereto in the space provided for that purpose below,
the Sale Agreement shall be, and it hereby is, amended as follows:
(a) Section 1.5(a) of the Sale Agreement shall be amended in its entirety
and as so amended shall read as follows:
"(a) General. (i) if at any time before the Termination Date the
Eligible Receivables Balance is less than the sum of the Aggregate
Investment (or, if a Termination Event exists, the Matured Aggregate
Investment) plus the Total Reserve, the Seller shall pay to the Agent,
within one Business Day, an amount equal to such deficiency for
application to reduce the Investments of the Purchasers ratably in
accordance with the principal amount of their respective Investments,
applied with respect to each such Purchaser first to such Purchaser's
Prime Tranches, if any, and second to the other Tranches applicable to the
Investment of such Purchaser with the shortest remaining maturities unless
otherwise specified by the Seller."
(b) Section 3.3 of the Sale Agreement shall be amended in its
entirety and as so amended shall read as follows:
Section 3.3. Reports. On or before the 25th day of each month, and,
after the occurrence and during the continuance of a Termination Event, at
such other times covering such other periods as is requested by the Agent
or the Instructing Group, the Collection Agent shall deliver to the Agent
and each Purchaser Agent a report reflecting information as of the close
of business of the Collection Agent for the immediately preceding calendar
month or such other preceding period as is requested (each a "Monthly
Periodic Report"), containing the information described on Exhibit B-1
(with such modifications or additional information as requested by the
Agent or the Instructing Group); provided, however, if the Parent's
long-term unsecured debt rating from both ▇▇▇▇▇'▇ and S&P is less than
Baa3 and BBB-, the Collection Agent shall continue to deliver a Monthly
Periodic Report on or before the 25th day of each month as set forth above
and shall also deliver to the Agent and each Purchaser Agent a report
reflecting information as of the close of business of the Collection Agent
for the immediately preceding calendar week (each a "Weekly Periodic
Report"), containing the information described on Exhibit B-2 (with such
modifications or additional information as requested by the Agent or the
Instructing Group) on or before Wednesday of each week for the immediately
preceding calendar week; provided, further, however, if the Parent's
long-term unsecured debt rating is less than "Ba2" from ▇▇▇▇▇'▇ or less
than "BB" from S&P, respectively, the Collection Agent shall continue to
deliver a Monthly Periodic Report on or before the 25th day of each month
as set forth above and shall also deliver to the Agent and each Purchaser
Agent a report reflecting information as of
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the close of business of the Collection Agent for
the immediately preceding Business Day (each a "Daily Periodic
Report") on each Business Day, containing the information as
requested by the Agent or the Instructing Group (each Monthly
Periodic Report, Weekly Periodic Report and Daily Periodic Report to
be referred to herein as a "Periodic Report").
(c) Section 7.2 of the Sale Agreement shall be amended by (i)
deleting the "and" contained at the end of clause (d) thereof, and (ii)
adding new clauses (e) and (f) thereto that will read as set forth below:
(e) as a result of the Purchase, the Aggregate Investment
shall not be greater than the lower of (i) the Eligible Receivables
Balance less the Total Reserves (the "Net Receivables Balance") as
set forth in the most recent Monthly Periodic Report delivered
pursuant to Section 3.3 hereof and (ii) the lowest Net Receivables
Balance as set forth in the Weekly Periodic Reports delivered
pursuant to Section 3.3 hereof since the delivery of the most recent
Monthly Periodic Report and, if no Weekly Periodic Report has been
delivered since the most recent Monthly Periodic Report, then for
purposes of this clause (ii), the Net Receivables Balance shall be
the Net Receivables Balance as set forth in the Weekly Periodic
Report delivered immediately prior to the most recent Monthly
Periodic Report; and
(f) all legal matters related to the Purchase are reasonably
satisfactory to the Purchasers.
(d) Exhibit B to the Sale Agreement shall be re-designated Exhibit
B-1 thereto and a new Exhibit B-2 in the form attached hereto shall be
added to the Sale Agreement.
Section 3. This Agreement shall become effective only once the Agent has
received, in form and substance satisfactory to the Agent, all documents and
certificates as the Agent may be reasonably request and all other matters
incident to the execution hereof are satisfactory to the Agent.
Section 4. To induce the Agent and the Related Committed Purchasers to
enter into this Amendment, the Seller and Collection Agent represent and warrant
to the Agent and the Related Committed Purchasers that: (a) the representations
and warranties contained in the Transaction Documents, are true and correct in
all material respects as of the date hereof with the same effect as though made
on the date hereof (it being understood and agreed that any representation or
warranty which by its terms is made as of a specified date shall be required to
be true and correct in all material respects only as of such specified date);
(b) no Potential Termination Event exists; (c) this Amendment has been duly
authorized by all necessary corporate proceedings and duly executed and
delivered by each of the Seller and the Collection
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Agent, and the Sale Agreement, as amended by this Amendment, and each of the
other Transaction Documents are the legal, valid and binding obligations of the
Seller and the Collection Agent, enforceable against the Seller and the
Collection Agent in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of creditors' rights or by general
principles of equity; and (d) no consent, approval, authorization, order,
registration or qualification with any governmental authority is required for,
and in the absence of which would adversely effect, the legal and valid
execution and delivery or performance by the Seller or the Collection Agent of
this Amendment or the performance by the Seller or the Collection Agent of the
Sale Agreement, as amended by this Amendment, or any other Transaction Document
to which they are a party.
Section 5. This Amendment may be executed in any number of counterparts
and by the different parties on separate counterparts and each such counterpart
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same Amendment.
Section 6. Except as specifically provided above, the Sale Agreement and
the other Transaction Documents shall remain in full force and effect and are
hereby ratified and confirmed in all respects. The execution, delivery, and
effectiveness of this Amendment shall not operate as a waiver of any right,
power, or remedy of any Agent or any Related Committed Purchaser under the Sale
Agreement or any of the other Transaction Documents, nor constitute a waiver or
modification of any provision of any of the other Transaction Documents. All
defined terms used herein and not defined herein shall have the same meaning
herein as in the Sale Agreement. The Seller agrees to pay on demand all costs
and expenses (including reasonable fees and expenses of counsel) of or incurred
by the Agent and each Purchaser Agent in connection with the negotiation,
preparation, execution and delivery of this Amendment.
Section 7. This Amendment and the rights and obligations of the parties
hereunder shall be construed in accordance with and be governed by the law of
the State of New York.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
and delivered by their duly authorized officers as of the date first above
written.
CREDIT LYONNAIS, acting through its New
York Branch, as the Agent, as a
Purchaser Agent and a Committed
Purchaser
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
BAYERISCHE LANDESBANK, New York Branch,
as a Purchaser Agent
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇
Title: Vice President
BAYERISCHE LANDESBANK, Cayman Islands
Branch, as a Committed Purchaser
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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ABN AMRO BANK N.V., as a Purchaser Agent
and a Committed Purchaser
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
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ARVINMERITOR RECEIVABLES CORPORATION, as
the Seller
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Treasurer
ARVINMERITOR, INC., as the Initial
Collection Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
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EXHIBIT B-2
FORM OF WEEKLY PERIODIC REPORT
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