Exhibit 10-l
SECOND AMENDMENT TO
AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT,
dated as of September 26, 2002 (the "Amendment"), is among GABRIEL RIDE CONTROL
PRODUCTS, INC., a Delaware corporation, MAREMONT EXHAUST PRODUCTS, INC., a
Delaware corporation, PUROLATOR PRODUCTS NA, INC., a Delaware corporation,
MERITOR HEAVY VEHICLE SYSTEMS, LLC, a Delaware limited liability company,
MERITOR HEAVY VEHICLE BRAKING SYSTEMS (USA), INC., a Delaware corporation,
EUCLID INDUSTRIES, LLC, a Delaware limited liability company, ARVINMERITOR OE,
LLC, a Delaware limited liability company, ROLL COATER, INC., an Indiana
corporation and AVM, INC. (each an "Originator" and collectively, the
"Originators"), ARVINMERITOR RECEIVABLES CORPORATION, a Delaware corporation
("Buyer") and Credit Lyonnais, acting through its New York Branch, as Agent (the
"Agent").
WITNESSETH
WHEREAS, the Originators (other than AVM, Inc.) and the Buyer have
previously entered into that certain Amended and Restated Purchase and Sale
Agreement dated as of September 27, 2001 (as amended, restated or otherwise
modified from time to time, the "Agreement") pursuant to which the Originators
agreed to sell to Buyer, and Buyer agreed to buy from each of the Originators,
all of the Receivables, all Related Security, Lock-Box Accounts and all proceeds
thereof generated by each such Originator;
WHEREAS, pursuant to the Second Tier Agreement, Buyer has transferred to
ABN AMRO Bank N.V., as agent for the Conduit Purchasers and the Committed
Purchasers, all of Buyer's right, title and interest in and to the Agreement,
including, without limitation, interests in the Receivables sold to Buyer
pursuant thereto;
WHEREAS, concurrently herewith the parties to the Second Tier Agreement
are amending and restating such Second Tier Agreement in its entirety to provide
for, among other things, the appointment of Credit Lyonnais, acting through its
New York Branch, as agent for the Conduit Purchasers and Committed Purchasers
thereunder;
WHEREAS, the parties hereto desire to add AVM, Inc., a South Carolina
corporation ("AVM") as an Originator under the Agreement effective as of
September 26, 2002.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
Section 1. Defined Terms. Unless otherwise amended by the terms of this
Agreement, terms used in this Amendment shall have the meanings assigned in the
Agreement.
Section 2. Amendments to Agreement. (a) As contemplated by Section 8.1 of
the Agreement, each of the parties hereto agrees that effective as of September
26, 2002 (the "Effective Date"), AVM agrees to sell, transfer, assign, set over
and otherwise convey to Buyer, and Buyer agrees to purchase from AVM, all
Receivables, all Related Security, Lock-Box Accounts and all proceeds thereof
originated by AVM.
(b) From and after the Effective Date, the term "Originator" shall be
amended to include AVM. In addition, from and after the Effective Date, AVM
agrees to be bound by all of the terms and conditions applicable to an
Originator contained in the Agreement and the other Transaction Documents.
(c) In connection with the execution of this Amendment, AVM and the Buyer
agree to deliver each of the documents set forth in Section 7.1 of the Second
Tier Agreement, to the extent that such documents are applicable.
(d) In connection with the execution and delivery of this Amendment, AVM
hereby makes, with respect to itself, the representations and warranties set
forth in Section 4.1 of the Agreement. The state of organization of AVM is the
State of South Carolina. The chief executive office of AVM is located at Highway
76 East Marion, South Carolina 29571 with a mailing address at Highway 76 East
Marion, South Carolina 29571 and has not been located in any other state besides
South Carolina since December 31, 1991. AVM has no trade names and has not
conducted business under any other name.
(e) All references in the Agreement to the Second Tier Agreement shall be
deemed references to the Second Amended and Restated Receivables Sale Agreement
dated as of September 26, 2002, among ArvinMeritor Receivables Corporation, as
Seller, ArvinMeritor, Inc., as Initial Collection Agent, Credit Lyonnais, acting
through its New York Branch, as Agent, the Purchaser Agents from time to time
party thereto, the Related Committed Purchasers from time to time party thereto
and the Conduit Purchasers from time to time party thereto, as the same may from
time to time hereafter be amended, modified, supplemented or restated in its
entirety in accordance with the terms thereof.
(f) Section 8.7 of the Agreement shall be deleted in its entirety and
replaced with the following:
Section 8.7. Governing Law; Submission to Jurisdiction. THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF NEW
YORK. EACH ORIGINATOR HEREBY SUBMITS 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 NEW
YORK, NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF,
OR RELATING TO, THE TRANSACTION DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREBY. Each Originator hereby irrevocably waives, to
the fullest extent permitted by law,
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any objection it may now or hereafter have to the venue of any such
proceeding and any claim that any such proceeding has been brought
in an inconvenient forum. Nothing in this Section 8.7 shall affect
the right of Buyer to bring any action or proceeding against an
Originator or its property in the courts of other jurisdictions.
(g) A new Section 8.12 shall be added to the Agreement and shall read as
follows:
"Section 8.12. Addition/Removal of Originator. Upon compliance
with the terms set forth in Section 7.3(a) of the Second Tier
Agreement, including the delivery of a Joinder Agreement in
substantially the form attached hereto as Exhibit B, an entity may
be added as an Originator under this Agreement. At such time, such
entity shall be an Originator for all purposes hereunder.
(b) Upon compliance with the terms set forth in Section 7.3(b)
of the Second Tier Agreement, the Buyer shall no longer purchase
Receivables originated by an Originator that has been removed
pursuant to the terms thereof; provided, however, that in no event
shall such Originator be relieved of any of its obligations under
this Agreement or the other Transaction Documents with respect to
any Receivables previously sold to the Buyer."
(h) The Agreement is hereby amended by adding thereto a new Exhibit B in
the form attached hereto as Exhibit B.
Section 3. Effectiveness of Agreement. Except as expressly amended by the
terms of this Amendment, all terms and conditions of the Agreement, as amended,
shall remain in full force and effect.
Section 4. Execution in Counterparts, Effectiveness. This Amendment may be
executed by the parties hereto in several counterparts, each of which shall be
executed by the parties hereto and be deemed an original and all of which shall
constitute together but one and the same instrument.
Section 5. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of New York, without reference to conflict of law
principles, and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with the laws 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 respective officers thereunto duly authorized as of the
day and year first above written.
GABRIEL RIDE CONTROL PRODUCTS, INC., as
Originator
By
Name:
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Title:
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MAREMONT EXHAUST PRODUCTS, INC., as
Originator
By
Name:
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Title:
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PUROLATOR PRODUCTS NA, INC., as
Originator
By
Name:
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Title:
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MERITOR HEAVY VEHICLE SYSTEMS, LLC, as
Originator
By
Name:
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Title:
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Signature Page to Second Amendment to
Amended and Restated Purchase and Sale
Agreement
MERITOR HEAVY VEHICLE BRAKING SYSTEMS
(USA), INC., as Originator
By
Name:
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Title:
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EUCLID INDUSTRIES, LLC, as Originator
By
Name:
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Title:
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ARVINMERITOR OE, LLC, as Originator
By
Name:
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Title:
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ROLL COATER, INC., as Originator
By
Name:
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Title:
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AVM, INC., as Originator
By
Name:
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Title:
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Signature Page to Second Amendment to
Amended and Restated Purchase and Sale
Agreement
ARVINMERITOR RECEIVABLES CORPORATION,
as Buyer
By
Name:
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Title:
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ARVINMERITOR, INC.
By
Name:
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Title:
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CREDIT LYONNAIS, acting through its New
York Branch, as Agent
By
Name:
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Title:
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By
Name:
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Title:
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Signature Page to Second Amendment to
Amended and Restated Purchase and Sale
Agreement
EXHIBIT B
TO
AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT
FORM OF JOINDER AGREEMENT
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CREDIT LYONNAIS, acting through its New
York Branch, as Agent and ARVINMERITOR
RECEIVABLES CORPORATION, as Buyer, party
to the Amended and Restated Purchase
and Sale Agreement dated as of September 27,
2001 among Buyer and Originators,
as amended (the "Agreement")
Ladies and Gentlemen:
Reference is made to the Agreement described above. Terms not defined
herein which are defined in the Agreement shall have for the purposes hereof the
meaning provided therein.
The undersigned, [NEW ORIGINATOR], a __________ [CORPORATION/LIMITED
LIABILITY COMPANY/PARTNERSHIP], hereby elects to be an "Originator" for all
purposes of the Agreement, effective from the date hereof.
[NEW ORIGINATOR] agrees to sell, transfer, assign, set over and otherwise
convey to Buyer all Receivables, all Related Security, Lock-Box Accounts and all
proceeds thereof originated by [NEW ORIGINATOR].
[NEW ORIGINATOR] agrees to deliver each of the documents set forth in
Section 7.3 of the Second Tier Agreement.
In connection with the execution and delivery of this Amendment, [NEW
ORIGINATOR] hereby makes, with respect to itself, the representations and
warranties set forth in Section 4.1 of the Agreement. The state of organization
of [NEW ORIGINATOR] is the State of ____________. The chief executive office of
[NEW ORIGINATOR] is located at _________________________ with a mailing address
at ____________________________________ and has not been located in any other
states besides _______________ since ________________, ____. [NEW ORIGINATOR]
has no trade names and has not conducted business under any other name.
Without limiting the generality of the foregoing, the undersigned hereby
agrees to perform all the obligations of an Originator under, and to be bound in
all respects by the terms of, the Agreement and the other Transaction Documents
to the same extent and with the same force and effect as if the undersigned were
a direct signatory thereto. This agreement shall be construed in accordance with
and governed by the laws of the State of New York.
Executed as of this ___ day of _______________, ____.
[NEW ORIGINATOR]
By:
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Name:
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Title:
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