Exhibit 10.3
EXECUTION VERSION
This SECOND AMENDED AND RESTATED PERFORMANCE GUARANTY (as amended, restated, supplemented or otherwise modified from time to time, this “Performance Guaranty”), dated as of November 5, 2021, is made by TRIUMPH GROUP, INC. (“Triumph”), a corporation organized under the laws of the State of Delaware, as performance guarantor (the “Performance Guarantor”), in favor of PNC BANK, NATIONAL ASSOCIATION (“PNC”), as administrator (the “Administrator”) for the benefit of the Purchasers, the LC Bank, the Purchaser Agents, each Indemnified Party and each Affected Person (and each of their respective successors and assigns) (collectively with the Administrator, the “Beneficiaries”) under and as defined in the Receivables Purchase Agreement (as defined below).
PRELIMINARY STATEMENTS:
(1) Each Originator from time to time party to the below-described Sale Agreement (herein collectively called the “Originators” and individually called an “Originator”), Triumph Receivables, LLC (the “SPV”), a Delaware limited liability company, and Triumph, as an Originator and as servicer, have entered into that certain Amended and Restated Purchase and Sale Agreement, dated as of September 29, 2020 (as amended, restated, supplemented or otherwise modified from time to time, the “Sale Agreement”), pursuant to which the Originators will, from time to time, sell Receivables and related rights and security to the SPV.
(2) The SPV, as seller (the “Seller”), Triumph, as initial servicer (in such capacity, the “Servicer”), the various Purchasers and Purchaser Agents from time to time party thereto, the LC Bank and the Administrator have entered into that certain Amended and Restated Receivables Purchase Agreement, dated as of September 29, 2020 (as amended, restated, supplemented or otherwise modified from time to time, the “Receivables Purchase Agreement”), pursuant to which the Seller will, from time to time, sell undivided interests in Receivables and Related Security to the Purchasers. Capitalized terms used, but not otherwise defined herein shall have the respective meanings assigned thereto in the Receivables Purchase Agreement.
(3) Triumph is the direct or indirect owner of 100% of the outstanding voting stock or membership interests of each Originator and the SPV.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Performance Guarantor hereby agrees as follows:
708437713 08057100 |
|
|
708437713 08057100 | 2 |
|
708437713 08057100 | 3 |
|
708437713 08057100 | 4 |
|
708437713 08057100 | 5 |
|
Substantive Consolidation. The Performance Guarantor shall, and shall cause each Originator to, observe and comply with each of the separateness covenants described in Section 6.4 of the Sale Agreement.
(f) [RESERVED]
(g) The Performance Guarantor will maintain a system of accounting established and administered in accordance with GAAP as in effect in the appropriate jurisdiction and the Performance Guarantor covenants and agrees that until all indebtedness and other obligations of SPV under the Receivables Purchase Agreement and each other Transaction Document shall have been paid in full, it shall furnish or cause to be furnished to the Administrator and each Purchaser Agent:
(i) Quarterly Financial Statements.
As soon as available and in any event within forty (40) calendar days after the end of each of the first three fiscal quarters in each fiscal year, (1) Triumph’s financial statements, consisting of consolidated balance sheets as of the end of such fiscal quarter and related consolidated statements of income, stockholders’ equity and cash flows for the fiscal quarter then ended and the fiscal year through that date, all in reasonable detail and certified (subject to normal year-end audit adjustments and the absence of footnotes) by the chief executive officer, president or chief financial officer of Triumph as having been prepared in accordance with GAAP and setting forth in comparative form the respective financial statements for the corresponding date and period in the previous fiscal year, and (2) Triumph’s Form 10-Q for such fiscal quarter.
(ii) Annual Financial Statement.
As soon as available and in any event within seventy-five (75) days after the end of each fiscal year, (1) consolidated financial statements of Triumph and its subsidiaries consisting of consolidated balance sheets as of the end of such fiscal year, and related consolidated statements of income, stockholders’ equity and cash flows for the fiscal year then ended, all in reasonable detail and setting forth in comparative form the financial statements as of the end of and for the preceding fiscal year, with the consolidated statements being certified by independent certified public accountants of nationally recognized standing satisfactory to the
708437713 08057100 | 6 |
|
Administrator, and (2) Triumph’s Form 10-K for such fiscal year. The certificate or report of accountants shall be free of qualifications (other than any consistency qualification that may result from a change in the method used to prepare the financial statements as to which such accountants concur) and shall not indicate the occurrence or existence of any event, condition or contingency which would materially impair the prospect of payment or performance of any covenant, agreement or duty of Triumph under this Performance Guaranty.
708437713 08057100 | 7 |
|
708437713 08057100 | 8 |
|
[Signature Pages Follow]
708437713 08057100 | 9 |
|
IN WITNESS WHEREOF, the Performance Guarantor has caused this Performance Guaranty to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.
TRIUMPH GROUP, INC.,
as Performance Guarantor
By: /s/ Jennifer H. Allen
Name: Jennifer H. Allen
Title: Senior Vice President, General Counsel and Secretary
Address: 1550 Liberty Ridge
Suite 100
Wayne, PA 19087
Attention: Adam M. Cohn & Jared T. Allen
Telephone: 610 727-5295 & 610 727-6767
Facsimile: 601 251-1555
Email: amcohn@triumphgroup.com & jaredallen@triumphgroup.com
744608399.3708437713 08057100 | S-1 | Performance Guaranty Triumph Group, Inc. |
Accepted as of the
date hereof:
PNC BANK, NATIONAL ASSOCIATION,
as Administrator
By: /s/ Christopher Blaney____________________
Name: Christopher Blaney
Title: Senior Vice President
Address: PNC Bank, National Association
The Tower at PNC Plaza
300 Fifth Avenue, 11th Floor
Pittsburgh, Pennsylvania 15222-2707
Attention: Brian Stanley
Telephone: (412) 768-2001
Facsimile: (412) 803-7142
Email: brian.stanley@pnc.com
744608399.3708437713 08057100 | S-2 | Performance Guaranty Triumph Group, Inc. |
Schedule I
ACTIONS/SUITS
None.
744608399.3708437713 08057100 | S-3 | Performance Guaranty Triumph Group, Inc. |