Exhibit 10a
AMENDMENT NO. 5 TO LOAN AGREEMENT
THIS AMENDMENT NO. 5 TO LOAN AGREEMENT (this “Amendment”) is made and entered into as of March 31, 2008, with respect to that certain Loan Agreement dated as of September 19, 2005 (as amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), by and among ARVINMERITOR RECEIVABLES CORPORATION, a Delaware corporation, as “Borrower,” ARVINMERITOR, INC., an Indiana corporation in its capacity as the initial “Collection Agent,” THREE PILLARS FUNDING LLC, a Delaware limited liability company, and SUNTRUST BANK, a Georgia banking corporation, as “Lenders”, and SUNTRUST ROBINSON HUMPHREY, INC, a Tennessee corporation, as “Three Pillars Agent” and as “Administrative Agent”. Capitalized terms used and not otherwise defined herein are used with the meanings attributed thereto in the Loan Agreement.
BACKGROUND
The parties wish to amend the Loan Agreement on the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained, the parties hereto agree as follows:
1. Amendment. | Effective on March 31, 2008: |
(a) Exhibit F to the Loan Agreement is amended and restated in its entirety to read as set forth in Exhibit 1 hereto, without the necessity of any further action on the part of any party to the Loan Agreement; and
(b) the definition of “Receivable” in Section 1.1 of the Loan Agreement is amended and restated in its entirety to read as follows:
“Receivable” means all indebtedness and other obligations owed to an Originator at the times it arises, and before giving effect to any transfer or conveyance under the Receivables Sale Agreement (including, without limitation, any indebtedness, obligation or interest constituting an account, chattel paper, instrument or general intangible) arising from the sale of goods or the provision of services by such Originator and further includes, without limitation, the applicable Obligor’s obligation to pay any Finance Charges, freight charges and other obligations of such Obligor with respect thereto; provided, however, in no event shall (i) indebtedness or obligations of Tower Automotive, Inc. or any of its subsidiaries to any Originator existing as of the Closing Date, (ii) indebtedness and obligations of General Motors Corporation, Ford Motor Corporation, or Chrysler Holdings, LLC or any of their respective subsidiaries existing as of any date, or (iii) any indebtedness or obligations owed at any time to ArvinMeritor OE, LLC arising from the sale of goods or the rendition of services at or from the facility located at 181 Bennett Drive, Pulaski, Tennessee, constitute “Receivables.” Indebtedness and other rights and obligations arising from any one transaction, including, without limitation, indebtedness and other rights and
obligations represented by an individual invoice, shall constitute a Receivable separate from a Receivable consisting of the indebtedness and other rights and obligations arising from any other transaction; provided that any indebtedness, rights or obligations referred to in the immediately preceding sentence shall be a Receivable regardless or whether the Obligor or applicable Originator treats such indebtedness, rights or obligations as a separate payment obligation.
2. Consent; Financing Statements. In furtherance of the foregoing:
(a) each of the Agents and the Lenders hereby consents to the execution, delivery, and performance by the Borrower and the Originators of an amendment to the Receivables Sale Agreement in form and substance as Exhibit 2 attached hereto,
(b) the Administrative Agent is hereby authorized to amend all financing statements filed in connection with the Receivables Sale Agreement naming the Originators, as debtors/sellers, and the Borrower, as secured party/purchaser, to exclude from the collateral described therein all Designated Receivables as defined in the Receivables Sale Agreement, as amended, and
(c) the Administrative Agent is hereby authorized to amend all financing statements naming the Borrower as debtor filed in connection with the Transaction Documents to release from the collateral covered thereby all indebtedness and obligations that are excluded from the definition of “Receivables” in the Loan Agreement pursuant to the proviso in the first sentence of that definition, as amended hereby.
3. Representations. In order to induce the Agents and the Lenders to enter into this Amendment, the Borrower hereby represents and warrants to the Agents and the Lenders that no Significant Event or Unmatured Significant Event exists and is continuing as of the date hereof.
4. Effectiveness. This Amendment shall become effective and shall inure to the benefit of the Borrower, the Collection Agent, the Lenders, the Agents and their respective successors and assigns when the Administrative Agent shall have received one or more counterparts of (i) this Amendment, duly executed and delivered by each of the parties hereto, and (ii) the amendment to the Receivables Sale Agreement in the form of Exhibit 2 hereto, duly executed and delivered by the Borrower and the Originators.
5. Ratification.Except as expressly amended above, the Loan Agreement remains unaltered and in full force and effect and is hereby ratified and confirmed.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW)).
7. Counterparts. This Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by facsimile shall be effective as delivery of a manually executed counterpart of this Amendment.
[signature pages begin on next page]
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the day and year first above written.
ARVINMERITOR RECEIVABLES CORPORATION, AS BORROWER
By: /s/ Mary Lehmann
Name: Mary Lehmann
Title: President and Treasurer
ARVINMERITOR, INC., AS INITIAL COLLECTION AGENT
By: /s/Mary Lehmann
Name: Mary Lehmann
Title: Senior Vice President, Strategic Initiatives, and Treasurer
THREE PILLARS FUNDING LLC, AS A CONDUIT LENDER
By: /s/ Doris J. Hearn
Name: Doris J. Hearn
Title: Vice President
SUNTRUST BANK, AS A COMMITTED LENDER
By: /s/ William C. Humphries
Name: William C. Humphries
Title: Managing Director
SUNTRUST ROBINSON HUMPHREY, INC., AS THREE PILLARS AGENT AND AS ADMINISTRATIVE AGENT
By: /s/ Michael G. Maza
Name: Michael G. Maza
Title: Managing Director
EXHIBIT 1
EXHIBIT F
CONCENTRATION LIMITS
Schedule Omitted.