EXHIBIT 10.4(d)
AMENDMENT NO. 5 TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 5 TO AMENDED AND RESTATED RECEIVABLES
PURCHASE AGREEMENT (this "AMENDMENT") is entered into as of December 11, 2003 by
and among Yellow Receivables Corporation, a Delaware corporation (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 that certain Amended
and Restated Receivables Purchase Agreement, dated as of July 30, 1999, among
the Seller, Falcon, the Investor and the Agent as heretofore amended from time
to time (the "EXISTING AGREEMENT").
W I T N E S S E T H :
WHEREAS, the Seller, Falcon, the Investor and the Agent are
parties to the Existing Agreement; and
WHEREAS, the parties hereto desire to amend the Existing
Agreement 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 Agreement.
2. AMENDMENTS.
2.1. Section 7.1(h) of the Existing Agreement is hereby
amended and restated in its entirety to read as follows:
(h) A "Default" or an "Event of Default" under and as defined
in that certain Credit Agreement dated as of December 11, 2003 by and
among Yellow Roadway Corporation, as borrower, various lenders from
time to time party thereto, Bank One and SunTrust Bank, as
co-syndication agents, Fleet National Bank and Wachovia Bank, National
Association, as co-documentation agents and Deutsche Bank AG, New York
Branch, as administrative agent, as amended, modified or replaced from
time to time (the "YELLOW CREDIT AGREEMENT"), shall occur and be
continuing; PROVIDED, HOWEVER, that any Servicer Default arising under
this Section 7.1(h) shall be deemed automatically waived if and to the
extent that any "Default" or "Event of Default" under the Yellow Credit
Agreement is waived in accordance with the terms thereof.
2.2. Section 7.1 of the Existing Agreement is hereby
amended to add the following new clause at the end thereof:
(i) Any Level II Trigger Event shall occur.
2.3. Section 11.5 of the Existing Agreement is hereby
amended to add the following new clause (c) thereto:
(c) Notwithstanding any other express or implied
agreement to the contrary, the parties hereto agree that each of them
and each of their employees, representatives, and other agents may
disclose to any and all Persons, without limitation of any kind, the
tax treatment and tax structure of the transaction and all materials of
any kind (including opinions or other tax analyses) that are provided
to any of them relating to such tax treatment and tax structure, except
where confidentiality is reasonably necessary to comply with U.S.
federal or state securities laws.
For purposes of this paragraph, the terms "tax treatment" and "tax
structure" have the meanings specified in Treasury Regulation section
1.6011-4(c).
2.4. The following new definitions are hereby inserted in
their appropriate alphabetical order in Exhibit I to the Existing Agreement:
"LEVEL I TRIGGER EVENT" means the failure of Yellow Roadway
Corporation to maintain a Total Leverage Ratio (as defined in the
Yellow Credit Agreement) or a Consolidated Interest Coverage Ratio (as
defined in the Yellow Credit Agreement) as set forth in the table
below:
TOTAL LEVERAGE RATIO CONSOLIDATED INTEREST COVERAGE RATIO
- ----------------------------------------------------------------------------------------------------
< 3.25 : 1.00 at any time between and including > 4.50 : 1.00 for the Test Period (as defined
12/11/03 and 12/31/04 in the Yellow Credit Agreement) ending 12/31/03
or for any Test Period during the fiscal year
ending 12/31/04
- ----------------------------------------------------------------------------------------------------
< 2.75 : 1.00 at any time during the fiscal year > 4.75 : 1.00 for any Test Period thereafter
ending 12/31/05
- ----------------------------------------------------------------------------------------------------
< 2.50 : 1.00 at any time thereafter
- ----------------------------------------------------------------------------------------------------
"LEVEL II TRIGGER EVENT" means the failure of Yellow Roadway
Corporation to maintain a Total Leverage Ratio (as defined in the
Yellow Credit Agreement) or a Consolidated Interest Coverage Ratio (as
defined in the Yellow Credit Agreement) as set forth in the table
below.
TOTAL LEVERAGE RATIO CONSOLIDATED INTEREST COVERAGE RATIO
- ----------------------------------------------------------------------------------------------------
< 4.00 : 1.00 at any time between and including > 3.75 : 1.00 for the Test Period ending
12/11/03 and 12/31/04 12/31/03 or for any Test Period during the
fiscal year ending 12/31/04
- ----------------------------------------------------------------------------------------------------
< 3.50 : 1.00 at any time during the fiscal year > 4.00 : 1.00 for any Test Period thereafter
ending 12/31/05
- ----------------------------------------------------------------------------------------------------
< 3.25 : 1.00 at any time thereafter
- ----------------------------------------------------------------------------------------------------
2.5. The following definitions in the Existing Agreement
are hereby amended and restated in their entirety to read, respectively, as
follows:
"CHANGE OF CONTROL" means (i) any Person or Persons acting in
concert shall acquire beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of 20% or more of the outstanding shares of
voting stock of Yellow Roadway Corporation; or (ii) during any period
of twelve (12) consecutive months, commencing before or after the date
hereof, individuals who at the beginning of such twelve-month period
were directors of the Originator shall cease for any reason to
constitute a majority of the board of directors of the Originator; or
(iii) the Originator shall cease to own all of the outstanding shares
of voting stock of the Seller on a fully diluted basis; or (iv) Yellow
Roadway Corporation shall cease to own all of the outstanding shares of
voting stock of the Originator on a fully diluted basis.
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"CONCENTRATION LIMIT" means:
(a) for any Obligor and its Affiliates considered as if they
were one and the same Obligor, an amount equal to (i) 3.00%, multiplied
by (ii) the aggregate Outstanding Balance of all Eligible Receivables
at such time;
(b) at any time, for all Government Receivables, 5% of the
aggregate Outstanding Balance of all Eligible Receivables at such time;
and
(c) at any time when neither a Level I Trigger Event nor a
Level II Trigger Event exists and is continuing, for that portion of
the Receivables representing Deferred Revenue, 15% of the aggregate
Outstanding Balance of all Eligible Receivables at such time, and at
any other time, for that portion of the Receivables representing
Deferred Revenue, 0% of the aggregate Outstanding Balance of all
Eligible Receivables at such time;
PROVIDED, HOWEVER, that:
(i) the Concentration Limit set forth in the preceding clause
(c) will automatically become zero (A) at all times while any Labor
Action is pending, and (B) immediately following the threat of any
Labor Action and for so long as the Agent, FALCON or the Required
Investors reasonably believe(s) such threat is likely to be carried
out, and
(ii) the Agent may from time to time designate other amounts
(each, a "SPECIAL CONCENTRATION LIMIT") for any Obligor or class of
Receivables, it being understood and agreed that the Agent, FALCON or
the Required Investors may, upon not less than three Business Days'
notice to the Seller, cancel any Special Concentration Limit.
2.6. All references in the Existing Agreement to "Yellow
Corporation" are hereby replaced with "Yellow Roadway Corporation."
3. REPRESENTATIONS AND WARRANTIES. In order to induce
the Agent and the Purchasers to enter into this Amendment, the Seller
hereby represents and warrants to the Agent and the Purchasers that
after giving effect to the amendments set forth above, (a) no Servicer
Default or Potential Servicer Default exists and is continuing as of
the Effective Date (as defined in Section 4 below), and (b) each of the
Seller's representations and warranties contained in Section 3.1 of the
Existing Agreement 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 (a) the
Agent has received counterparts of this Amendment, duly executed by the
Seller, the Agent, Falcon and the Investor, and (b) the "Effective
Date" under and as defined in the Yellow Credit Agreement shall have
occurred.
5. RATIFICATION. The Existing Agreement, 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 the Existing Agreement to "this
Agreement", "hereof", or "hereunder" or words of like import, and all
references to the Existing Agreement in any and all agreements,
instruments, documents, notes, certificates and other writings of every
kind and nature shall be deemed to mean the Existing Agreement, as
modified by this Amendment.
7. COSTS AND EXPENSES. The Seller 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.
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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.
<signature pages follow>
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IN WITNESS WHEREOF, the Seller, Falcon, the Investor and the
Agent have executed this Amendment as of the date first above written.
Yellow Receivables Corporation
By: ________________________________________
Name:
Title:
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FALCON ASSET SECURITIZATION CORPORATION
By: ________________________________________
Authorized Signatory
BANK ONE, NA, INDIVIDUALLY AND AS AGENT
By: ________________________________________
Name:
Title:
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