Exhibit 10-m
THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
THIS THIRD AMENDMENT (the "Amendment"), dated as of September 25, 2003, 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. 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. Subject to the following terms and conditions, including
without limitation the conditions precedent set forth in Section 2, 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:
(i) The defined term "Scheduled Termination Date" appearing in
Schedule I to the Sale Agreement is amended in its entirety to be and to
read as follows:
"Scheduled Termination Date" means September 23, 2004.
(ii) Section 5.1(i) of the Sale Agreement shall be amended by adding
at the end thereof the following:
"Notwithstanding anything contained in this subsection (i) to the
contrary, Roll Coater, Inc., ArvinMeritor OE, LLC, Meritor Heavy Systems
(USA), Inc. and Meritor Heavy Vehicles Systems, LLC shall not be required
to have standing instructions to deliver payments on the Receivables to a
Lock-Box or a Lock-Box Account in place at all times with all of their
respective Obligors so long as the aggregate amount of such payments that
are not deposited directly by such Obligors into a Lock-Box or a Lock-Box
Account does not exceed in the aggregate $4,000,000 in any single calendar
month. When the Seller receives such payments, it shall hold such payments
in trust for the benefit of the Agent, the Purchaser Agents and the
Purchasers and promptly (but in any event within two Business Days after
receipt) remit, or cause to be remitted, such funds
into Account No. 758111856, 758111843 or 758111830 at National City Bank
of Indiana, in Indianapolis, Indiana, Account No. 840913937 at National
City Bank, in Indianapolis, Indiana, or any other Lock-Box Account.
Section 2. 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 3. 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 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 4. 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 5. 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.
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Section 6. 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/ Richard T. McBride
Name: Richard T. McBride
Title: Director
BAYERISCHE LANDESBANK, New York Branch,
as a Purchaser Agent
By: /s/ Alexander Kohnert
Name: Alexander Kohnert
Title: Senior Vice President
By: /s/ Lori-Ann Wynter
Name: Lori-Ann Wynter
Title: Vice President
BAYERISCHE LANDESBANK, Cayman Islands
Branch, as a Committed Purchaser
By: /s/ Dietmar Rieg
Name: Dietmar Rieg
Title: Senior Vice President
By: /s/ James H. Boyle
Name: James H. Boyle
Title: Vice President
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ABN AMRO BANK N.V., as a Purchaser Agent
and a Committed Purchaser
By: /s/ Kevin G. Pilz
Name: Kevin G. Pilz
Title: Vice President
By: /s/ Thomas J. Educate
Name: Thomas J. Educate
Title: Senior Vice President
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ARVINMERITOR RECEIVABLES CORPORATION, as
the Seller
By: /s/ Brian Casey
Name: Brian Casey
Title: Treasurer
ARVINMERITOR, INC., as the Initial
Collection Agent
By: /s/ Brian Casey
Name: Brian Casey
Title: VP & Treasurer
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