EXHIBIT 10.20
OMNIBUS AMENDMENT
THIS OMNIBUS AMENDMENT is entered into as of December 31, 2002 by
and among Yellow Transportation, Inc., an Indiana corporation f/k/a Yellow
Freight System, Inc. (the "ORIGINATOR"), Yellow Receivables Corporation, a
Delaware corporation (the "SPV" or the "SELLER"), Falcon Asset Securitization
Corporation ("FALCON") and Bank One, NA (formerly known as The First National
Bank of Chicago), individually (the "INVESTOR") and as agent (in such capacity,
the "AGENT"), with respect to (a) that certain Receivables Sale Agreement, dated
as of August 2, 1996 by and between the Originator and the SPV as heretofore
amended (the "EXISTING SALE AGREEMENT"), and (b) that certain Amended and
Restated Receivables Purchase Agreement, dated as of July 30, 1999, among the
SPV, Falcon, the Investor and the Agent as heretofore amended (the "EXISTING
PURCHASE AGREEMENT" and, together with the Existing Sale Agreement, the
"EXISTING AGREEMENTS").
W I T N E S S E T H :
WHEREAS, the Originator, the SPV, Falcon, the Investor and the
Agent are parties to one or both of the Existing Agreements; and
WHEREAS, the parties hereto desire to amend the Existing Agreements
as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises herein contained,
and for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used herein and not otherwise
defined shall have their meanings as attributed to such terms in the Existing
Agreements.
2. AMENDMENTS.
2.1. Section 1.5.7 of the Existing Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
Section 1.5.7. Repurchase Option. The Seller shall have the right,
by prior written notice to the Agent given in not less than the Required
Notice Period, at any time to repurchase from the Purchasers all, but not
less than all, of the then outstanding Receivable Interests. The purchase
price in respect thereof shall be an amount equal to the Aggregate Unpaids
through the date of such repurchase, payable in immediately available
funds. Such repurchase shall be without representation, warranty or
recourse of any kind by, on the part of, or against any Purchaser or the
Agent.
2.2. Section 11.14 of the Existing Purchase Agreement is hereby
amended by amending and restating the first sentence thereof to read as follows:
It is the intention of the parties hereto that each
purchase hereunder shall constitute an
absolute and irrevocable sale for all purposes other
than financial accounting purposes, which purchase shall
provide the applicable Purchaser with the full benefits
of ownership of the applicable Receivable Interest.
2.3. The definitions of "DEFAULTED RECEIVABLE" and "DELINQUENT
RECEIVABLE" in the Existing Purchase Agreement are hereby amended and restated
in their entirety to read, respectively, as follows:
"DEFAULTED RECEIVABLE" means a Receivable: (i) as to which any
payment, or part thereof, remains unpaid for 151 days or more from the
original invoice date for such payment; (ii) as to which the Obligor
thereof has taken any action, or suffered any event to occur, of the type
described in Section 7.1(c) (as if references to the Seller therein refer
to such Obligor); (iii) as to which the Obligor thereof, if a natural
person, is deceased; or (iv) which has been identified by the Seller as
uncollectible.
"DELINQUENT RECEIVABLE" means a Receivable (other than a Defaulted
Receivable) as to which any payment, or part thereof, remains unpaid for
121 days or more but less than 151 days from the original invoice date for
such payment.
2.4. Section 7.1(d)(iii) of the Existing Purchase Agreement is
hereby amended and restated in its entirety to read as follows:
(iii) the average of the Default Ratios for each of the three
consecutive calendar months then most recently ended shall exceed 3.25% at
any time from and including January 1, 2003 through and including March
31, 2003, or 3.00% at any time thereafter.
2.5. The definition of "LOSS RESERVE PERCENTAGE" in the Existing
Purchase Agreement is hereby amended and restated in its entirety to read
as follows:
"LOSS RESERVE PERCENTAGE" means, on any date of determination, (a)
2.00, multiplied by (b) the highest of the past twelve rolling 3-month
average Default Ratios, multiplied by (c) a fraction having a numerator
equal to the aggregate amount of Receivables generated during the
preceding 4 months and denominator equal to the Net Receivables Balance on
the date of determination; PROVIDED, HOWEVER, that in no event shall the
Loss Reserve Percentage be less than 16.5% at any time from and including
January 1, 2003 through and including March 31, 2003, or 15% thereafter.
2.6. Section 1.1(b) of the Existing Sale Agreement is hereby amended
by amending and restating the first sentence thereof to read as follows:
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It is the intention of the parties hereto that each
Purchase of Receivables made hereunder shall constitute
a "sale of accounts," as such terms is used in Article 9
of the UCC for all purposes other than financial
accounting purposes, which sales are absolute and
irrevocable and provide the Buyer with the full benefits
of ownership of the Receivables.
2.7. Section 4.2(e) of the Existing Sale Agreement is hereby amended
by (i) replacing "The" with "the" at the beginning of such Section and (ii)
inserting the phrase "Other than for financial accounting purposes," at the
beginning of such Section immediately before the phrase "the Originator will
not, and shall not".
3. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent and
the Purchasers to enter into this Amendment, each of the Originator and the SPV
hereby represents and warrants to the Agent and the Purchasers that after giving
effect to the amendments contained in Section 2 above, (a) no Servicer Default,
Event of Default, Potential Servicer Default or Potential Event of Default
exists and is continuing as of the Effective Date (as defined in Section 4
below), and (b) each of such Person's representations and warranties contained
in Section 2.1 of the Existing Sale Agreement (in the case of the Originator)
and Section 3.1 of the Existing Purchase Agreement (in the case of the SPV) is
true and correct as of the Effective Date.
4. EFFECTIVE DATE. This Amendment shall become effective as of the
date first above written (the "EFFECTIVE DATE") when the Agent has received
counterparts of this Amendment, duly executed by each of the parties hereto.
5. RATIFICATION. Each of the Existing Agreements, as modified
hereby, is hereby ratified, approved and confirmed in all respects.
6. REFERENCE TO AGREEMENT. From and after the Effective Date hereof,
each reference in either of the Existing Agreements to "this Agreement",
"hereof", or "hereunder" or words of like import, and all references to either
of the Existing Agreements in any and all agreements, instruments, documents,
notes, certificates and other writings of every kind and nature shall be deemed
to mean such Existing Agreement, as modified by this Amendment.
7. COSTS AND EXPENSES. The SPV agrees to pay all costs, fees, and
out-of-pocket expenses (including reasonable attorneys' fees and disbursements)
incurred by the Agent in connection with the preparation, execution and
enforcement of this Amendment.
8. CHOICE OF LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS.
9. EXECUTION IN COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the Originator, the SPV, Falcon, the Investor
and the Agent have executed this Amendment as of the date first above written.
Yellow TRANSPORTATION, INC.
By:
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Name:
Title:
Yellow Receivables Corporation
By:
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Name:
Title:
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FALCON ASSET SECURITIZATION CORPORATION
By:
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Authorized Signatory
BANK ONE, NA, INDIVIDUALLY AND AS AGENT
By:
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Authorized Signatory
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