EXHIBIT 10a
SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
THIS SECOND AMENDMENT (the "Amendment"), dated as of March 24, 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"), Giro Balanced Funding Corporation ("GBFC"), La Fayette Asset
Securitization LLC ("La Fayette"), Amsterdam Funding Corporation ("Amsterdam"),
the other Conduit Purchasers from time to time party hereto, 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, Amsterdam, GBFC, La
Fayette, the other 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:
(a) The defined term "Dilution Horizon Ratio Period"
appearing in Schedule I to the Sale Agreement is amended in its
entirety to be and to read as follows:
"Dilution Horizon Ratio Period" means, at any time
the same is to be determined, the four most recently completed
calendar months.
(b) The defined term "Dilution Ratio Period" appearing in
Schedule I to the Sale Agreement is amended in its entirety to be and
to read as follows:
"Dilution Ratio Period" means, at any time the same
is to be determined, the calendar month four months prior to
the most recently completed calendar month.
(c) The defined term "Performance Trigger Period"
appearing in Schedule I to the Sale Agreement is amended in its
entirety to be and to read as follows:
"Performance Trigger Period" means the period of time
commencing on the date the Dilution Ratio exceeds 7.25% and
ending on the date the Dilution Ratio is 6.75% or less for
three consecutive calendar months.
(d) Clause (f) of the defined term "Termination Event"
appearing in Schedule I to the Sale Agreement is amended in its
entirety to be and to read as follows:
(f) the average Delinquency Ratio for the three
most recently completed calendar months exceeds 5%, the
average Default Ratio for the three most recently completed
calendar months exceeds 7%, the average Dilution Ratio for the
three most recently completed calendar months exceeds 6.50%,
the Loss-to Liquidation Ratio exceeds 2.5% or the average
Turnover Ratio for the three most recently completed calendar
months exceeds 90 days; or
Section 2. The Agent and the Purchaser Agents hereby consent to the
addition of Zeuna Staerker USA, Inc. as a new Originator under the Sale
Agreement and the Purchase Agreement; provided, however, that the foregoing
consent shall be effective only upon receipt by the Agent of the items specified
in Section 7.3(a) of the Sale Agreement (other than Section 7.3(a)(ii) (but only
with respect to the Agent's first priority security interests in the Lock-Box
Accounts) and Section 7.3(a)(vi) thereof) with respect to such new Originator.
Section 3. Not later than 30 days following the date hereof, the
Seller shall have (i) opened a deposit account at Bank One, NA (the "New
Account"), (ii) delivered to the Agent evidence of the agreement between the
Seller and Bank of America providing for the sweep of all outstanding balances
on deposit from Account No. 733841566 maintained at Bank of America (the "B of A
Account") to the New Account on each Business Day and (iii) delivered to the
Agent an acknowledgment to that certain Lockbox Agreement dated as of September
26, 2002 which subjects the New Account to the provisions thereof. Not later
than 90 days following the date hereof, the Seller shall deliver to the Agent
evidence that the Seller notified each of the Obligors currently submitting
payments electronically to the B of A Account to remit all future payments to
the New Account and that all such obligors shall have commenced the remittance
of payments to the New Account. The Seller acknowledges and agrees that the
failure to comply with the foregoing within such specified period shall
constitute a Termination Event under the Agreement.
Section 4. 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.
-2-
Section 5. 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 6. 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 7. 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 8. 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.
-3-
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 and as a Purchaser
Agent
By: ________________________________________
Name: ___________________________________
Title: __________________________________
BAYERISCHE LANDESBANK, New York Branch,
as a Purchaser Agent
By: ________________________________________
Name: ___________________________________
Title: __________________________________
By: ________________________________________
Name: ___________________________________
Title: __________________________________
ABN AMRO BANK N.V., as a Purchaser Agent
By: ________________________________________
Name: ___________________________________
Title: __________________________________
By: ________________________________________
Name: ___________________________________
Title: __________________________________
-4-
ARVINMERITOR RECEIVABLES CORPORATION, as
the Seller
By: ________________________________________
Name:____________________________________
Title: __________________________________
ARVINMERITOR, INC., as the Initial
Collection Agent
By: ________________________________________
Name:____________________________________
Title: __________________________________
-5-