AMENDMENT NO. 15 TO THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
Exhibit 10.2.8
AMENDMENT NO. 15 TO THIRD AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 15 TO THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (this “Amendment”) is entered into as of December 15, 2009 by and among:
(a) Yellow Roadway Receivables Funding Corporation, a Delaware corporation (the “Seller”),
(b) YRC Worldwide Inc., a Delaware corporation (the “Performance Guarantor”),
(c) JPMorgan Chase Bank, N.A. (“JPMorgan”), SunTrust Xxxxxxxx Xxxxxxxx, Inc., Wachovia Bank, National Association, and The Royal Bank of Scotland plc, as successor to ABN AMRO Bank N.V. (each of the foregoing a “Co-Agent”), and
(d) JPMorgan, as administrative agent for the Groups (together with its successors and permitted assigns and in such capacity, the “Administrative Agent” and together with the Co-Agents, and their respective successors and permitted assigns, the “Agents”),
with respect to that certain Third Amended and Restated Receivables Purchase Agreement, dated as of April 18, 2008, among the Seller, the Committed Purchasers, the Conduits, the LC Issuer and the Agents (as amended, restated, supplemented or otherwise modified from time to time, the “RPA”).
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise defined herein shall have the meanings attributed to such terms in the RPA.
2. Amendments to RPA. Effective as of the Effective Date (as defined herein), subject to the satisfaction of the conditions precedent set forth in Section 3 below, the RPA is hereby amended as follows:
(a) The definition of “Stated Liquidity Termination Date” set forth in Exhibit I to the RPA is hereby amended to delete the reference to “December 16, 2009” therein and to substitute “January 12, 2010” therefor.
(b) Clause (a)(ii) of the definition of “Trigger Event” set forth in Exhibit I to the RPA is hereby amended to delete the reference to “December 16, 2009” therein and to substitute “January 12, 2010” therefor.
3. Conditions Precedent. This Amendment shall become effective on the date (the “Effective Date”) when each of the following conditions precedent have been satisfied or waived:
(a) the Administrative Agent shall have received the following, each in form and substance satisfactory to the Administrative Agent: (i) counterparts of this Amendment, duly executed by the Seller, the Agent and the Required Co-Agents, (ii) a duly executed copy of Amendment No. 13 to Credit Agreement, dated as of December 15, 2009, among the Performance Guarantor, as borrower, the entities party thereto as Canadian Borrowers, the entities party thereto as UK Borrowers, the financial institutions party thereto and JPMorgan Chase Bank, National Association, as administrative agent (“Amendment No. 13”), (iii) a fully executed copy of the Amendment to Fourth Amended and Restated Co-Agents’ Fee Letter of even date herewith, duly executed by the Seller, the Amsterdam Agent, the LC Issuer, the Wachovia Agent, the Falcon Agent and the Administrative Agent, (iv) a fully executed copy of Amendment to SunTrust Fee Letter of even date herewith, duly executed by the Seller and the Three Pillars Agent; and
(b) the Seller shall have paid the reasonable legal fees and disbursements of (i) the Administrative Agent’s counsel, Sidley Austin LLP and (ii) the Wachovia Agent’s counsel, Xxxxxxxxx Xxxxxxx, LLP, in each case, invoiced on or prior to the date on which the conditions described in clause (a) above and this clause (b) have been satisfied.
4. Representations and Warranties. In order to induce the other parties to enter into this Amendment, (a) the Seller hereby represents and warrants to the Agents, the LC Issuer and the Purchasers that after giving effect to the amendments contained in Section 2 above, (i) no Servicer Default or Potential Servicer Default exists and is continuing as of the Effective Date (as defined herein), (ii) the RPA, as amended hereby, constitutes the legal, valid and binding obligation of the Seller enforceable against it in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and (iii) excluding Section 3.1(k) of the RPA solely insofar as it relates to the absence of a Material Adverse Effect of the type described in clause (i) of the definition of such term (as to which no representation or warranty is made hereby), each of the Seller’s representations and warranties contained in the RPA is correct as of the Effective Date and (b) the Performance Guarantor hereby consents to the amendment herein contained and ratifies and confirms that the Performance Undertaking remains in full force and effect.
5. Ratification. Except as modified hereby, the RPA is hereby ratified, approved and confirmed in all respects.
6. Reference to Agreement. From and after the Effective Date, each reference in the RPA to “this Agreement”, “hereof”, or “hereunder” or words of like import, and all references to the RPA in any and all agreements, instruments, documents, notes, certificates and other writings of every kind and nature shall be deemed to mean the RPA as modified by this Amendment.
7. Costs and Expenses. The Seller agrees to pay all reasonable costs, fees, and out-of-pocket expenses (including reasonable attorneys’ fees and disbursements) incurred by the Agents in connection with the preparation, execution and enforcement of this Amendment.
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8. CHOICE OF LAW. THIS AMENDMENT SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW) WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
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. Delivery of an executed counterpart via facsimile or other electronic transmission shall be deemed delivery of an original counterpart.
<Signature pages follow>
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered by their duly authorized officers as of the date hereof.
| YELLOW ROADWAY RECEIVABLES FUNDING CORPORATION | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Performance Guarantor | ||
| By: |
| |
| Name: | ||
| Title: | ||
Amendment No. 15 to
Third Amended and Restated Receivables Purchase Agreement
| SUNTRUST XXXXXXXX XXXXXXXX, INC., as Three Pillars Agent | ||
| By: |
| |
| Name: | ||
| Title: | ||
| JPMORGAN CHASE BANK, N.A., as Falcon Agent and as Administrative Agent | ||
| By: |
| |
| Name: | ||
| Title: | ||
| WACHOVIA BANK, NATIONAL ASSOCIATION, as Wachovia Agent | ||
| By: |
| |
| Name: | ||
| Title: | ||
| THE ROYAL BANK OF SCOTLAND PLC, as Amsterdam Agent | ||
| By: RBS SECURITIES INC., as its agent | ||
| By: |
| |
| Name: | ||
| Title: | ||
Amendment No. 15 to
Third Amended and Restated Receivables Purchase Agreement
AMENDMENT NO. 16 TO THIRD AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 16 TO THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (this “Amendment”) is entered into as of December 21, 2009 by and among:
(a) Yellow Roadway Receivables Funding Corporation, a Delaware corporation (the “Seller” or “YRRFC”),
(b) YRC Worldwide Inc., a Delaware corporation (the “Performance Guarantor”),
(c) JPMorgan Chase Bank, N.A. (“JPMorgan”), SunTrust Bank (“SunTrust”), Wachovia Bank, National Association (“Wachovia”), and The Royal Bank of Scotland plc (“RBS”) as successor to ABN AMRO Bank N.V. (each of the foregoing a “Committed Purchaser”),
(d) Falcon Asset Securitization Company LLC, Three Pillars Funding LLC and Amsterdam Funding Corporation (each of the foregoing, a “Conduit”),
(e) Wachovia, as letter of credit issuer (the “LC Issuer”),
(f) SunTrust Xxxxxxxx Xxxxxxxx, Inc., Wachovia, RBS and JPMorgan (each of the foregoing, a “Co-Agent”), and
(g) JPMorgan, as administrative agent for the Groups (together with its successors and permitted assigns and in such capacity, the “Administrative Agent” and together with the Co-Agents, and their respective successors and permitted assigns, the “Agents”),
with respect to that certain Third Amended and Restated Receivables Purchase Agreement, dated as of April 18, 2008, among the Seller, the Committed Purchasers, the Conduits, the LC Issuer and the Agents (as amended, restated, supplemented or otherwise modified from time to time, the “RPA”).
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise defined herein shall have the meanings attributed to such terms in the RPA.
2. Amendments to RPA. Effective as of the Effective Date (as defined herein), subject to the satisfaction of the conditions precedent set forth in Section 3 below, the RPA is hereby amended as follows:
(a) The proviso appearing in Section 1.5(d) of the RPA is hereby amended and restated in its entirety as follows:
;provided that, with respect to any payment required to reduce the Effective Receivable Interest to 100%, the Servicer shall not be required to remit such payment under this Section 1.5(d) if (A) Aggregate Capital on such date is greater than or equal to $50,000,000 and (B) the amount of such payment would be less than $1,000,000.
(b) The proviso appearing in the first sentence of Section 1.5(e) of the RPA is hereby amended and restated in its entirety as follows:
;provided that, with respect to any payment required to reduce the Effective Receivable Interest to 100%, the Servicer shall not be required to remit such payment under this Section 1.5(e) if (A) aggregate Credit Exposure on such date is greater than or equal to $50,000,000 and (B) the amount of such payment would be less than $1,000,000.
(c) The definition of “Amortization Date” set forth in Exhibit I to the RPA is hereby amended and restated in its entirety as follows:
“Amortization Date” means the earliest to occur of (i) the day on which any of the conditions precedent set forth in Section 4.2 are not satisfied, (ii) the Business Day immediately prior to the occurrence of a Servicer Default set forth in Section 7.1(c), (iii) the Business Day specified in a written notice from the Administrative Agent following the occurrence of any other Servicer Default, (iv) the date which is 30 Business Days after the Co-Agents’ receipt of written notice from Seller that it wishes to terminate the facility evidenced by this Agreement, and (v) the “Maturity Date” under and as defined in the YRCW Credit Agreement.
(d) Clauses (a) and (b) of the definition of “Trigger Event” set forth in Exhibit I to the RPA are hereby amended and restated in their entirety as follows:
(a) the failure of the Performance Guarantor to maintain Available Cash equal to or greater than (i) from April 1, 2010 to and including September 30, 2010, $25,000,000 at all times and (ii) from October 1, 2010 and thereafter, $50,000,000 at all times, (b) the failure of the Performance Guarantor to maintain, as of the end of the accounting periods set forth below, Consolidated EBITDA in the minimum level set forth below next to such accounting period (for each such period, “Minimum Consolidated EBITDA”);
| Period |
Minimum Consolidated EBITDA | ||
| For the fiscal quarter ending on June 30, 2010 |
$ | 31,500,000 | |
| For the two consecutive fiscal quarters ending September 30, 2010 |
$ | 107,000,000 | |
| For the three consecutive fiscal quarters ending December 31, 2010 |
$ | 173,000,000 | |
| For the four consecutive fiscal quarters ending March 31, 2011 |
$ | 270,000,000 | |
| For the four consecutive fiscal quarters ending June 30, 2011 |
$ | 270,000,000 | |
| For the four consecutive fiscal quarters ending September 30, 2011 |
$ | 280,000,000 | |
| For the four consecutive fiscal quarters ending December 31, 2011 |
$ | 270,000,000 | |
| For the four consecutive fiscal quarters ending March 31, 2012 |
$ | 300,000,000 | |
| For the four consecutive fiscal quarters ending June 30, 2012 |
$ | 330,000,000 | |
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3. Conditions Precedent. This Amendment shall become effective on the date (the “Effective Date”) when each of the following conditions precedent have been satisfied or waived:
(a) the Administrative Agent shall have received the following, each in form and substance satisfactory to the Administrative Agent: (i) counterparts of this Amendment, duly executed by the Seller, each Agent and each Purchaser and (ii) a duly executed copy of Amendment No. 14 to Credit Agreement, dated as of December 21, 2009, among the Performance Guarantor, as borrower, the entities party thereto as Canadian Borrowers, the entities party thereto as UK Borrowers, the financial institutions party thereto and JPMorgan Chase Bank, National Association, as administrative agent; and
(b) the Seller shall have paid the reasonable legal fees and disbursements of (i) the Administrative Agent’s counsel, Sidley Austin LLP and (ii) the Wachovia Agent’s counsel, Xxxxxxxxx Xxxxxxx, LLP, in each case, invoiced on or prior to the date on which the conditions described in clause (a) above and this clause (b) have been satisfied.
4. Representations and Warranties. In order to induce the other parties to enter into this Amendment, (a) the Seller hereby represents and warrants to the Agents, the LC Issuer and the Purchasers that after giving effect to the amendments contained in Section 2 above, (i) no Servicer Default or Potential Servicer Default exists and is continuing as of the Effective Date (as defined herein), (ii) the RPA, as amended hereby, constitutes the legal, valid and binding obligation of the Seller enforceable against it in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and (iii) excluding Section 3.1(k) of the RPA solely insofar as it relates to the absence of a Material Adverse Effect of the type described in clause (i) of the definition of such term (as to which no representation or warranty is made hereby), each of the Seller’s representations and warranties contained in the RPA is correct as of the Effective Date and (b) the Performance Guarantor hereby consents to the amendment herein contained and ratifies and confirms that the Performance Undertaking remains in full force and effect.
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5. Ratification. Except as modified hereby, the RPA is hereby ratified, approved and confirmed in all respects.
6. Reference to Agreement. From and after the Effective Date, each reference in the RPA to “this Agreement”, “hereof”, or “hereunder” or words of like import, and all references to the RPA in any and all agreements, instruments, documents, notes, certificates and other writings of every kind and nature shall be deemed to mean the RPA as modified by this Amendment.
7. Costs and Expenses. The Seller agrees to pay all reasonable costs, fees, and out-of-pocket expenses (including reasonable attorneys’ fees and disbursements) incurred by the Agents in connection with the preparation, execution and enforcement of this Amendment.
8. CHOICE OF LAW. THIS AMENDMENT SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW) WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
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. Delivery of an executed counterpart via facsimile or other electronic transmission shall be deemed delivery of an original counterpart.
<Signature pages follow>
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered by their duly authorized officers as of the date hereof.
| YELLOW ROADWAY RECEIVABLES FUNDING CORPORATION | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Performance Guarantor | ||
| By: |
| |
| Name: | ||
| Title: | ||
Amendment No. 16 to
Third Amended and Restated Receivables Purchase Agreement
| SUNTRUST XXXXXXXX XXXXXXXX, INC., as Three Pillars Agent | ||
| By: |
| |
| Name: | ||
| Title: | ||
| SUNTRUST BANK, as a Committed Purchaser | ||
| By: |
| |
| Name: | ||
| Title: | ||
| THREE PILLARS FUNDING LLC, as a Conduit | ||
| By: |
| |
| Name: | ||
| Title: | ||
| JPMORGAN CHASE BANK, N.A., as a Committed Purchaser, as Falcon Agent and as Administrative Agent | ||
| By: |
| |
| Name: | ||
| Title: | ||
| FALCON ASSET SECURITIZATION COMPANY LLC, as a Conduit | ||
| BY: JPMORGAN CHASE BANK, N.A., ITS ATTORNEY-IN-FACT | ||
| By: |
| |
| Name: | ||
| Title: | ||
Amendment No. 16 to
Third Amended and Restated Receivables Purchase Agreement
| WACHOVIA BANK, NATIONAL ASSOCIATION, as a Committed Purchaser, as LC Issuer and as Wachovia Agent | ||
| By: |
| |
| Name: | ||
| Title: | ||
| THE ROYAL BANK OF SCOTLAND PLC, as a Committed Purchaser and as Amsterdam Agent | ||
| By: RBS SECURITIES INC., as its agent | ||
| By: |
| |
| Name: | ||
| Title: | ||
| AMSTERDAM FUNDING CORPORATION, as a Conduit | ||
| By: |
| |
| Name: | ||
| Title: | ||
Amendment No. 16 to
Third Amended and Restated Receivables Purchase Agreement
