EXHIBIT 10.1
AMENDMENT NO. 1 TO RECEIVABLES SALE AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment") is entered into as of
July 30, 1999 by and between YELLOW FREIGHT SYSTEM, INC., an Indiana corporation
(the "Originator"), and YELLOW RECEIVABLES CORPORATION, a Delaware corporation
(the "Buyer"), with respect to that certain RECEIVABLES SALE AGREEMENT, dated as
of August 2, 1996 by and between the Originator and the Buyer (the "Existing
Agreement"). Unless defined elsewhere herein, capitalized terms used in this
Agreement shall have the meanings assigned to such terms in the Existing
Agreement.
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and
sufficiency of which are hereby acknowledged, the Originator and the Buyer
hereby agree as follows:
1. Section 2.1 of the Existing Agreement is hereby amended to
add the following new clause (t) thereto:
(t) Year 2000. The Originator (i) has reviewed the areas
within its business and operations which could be adversely affected by
the Year 2000 Problem, (ii) has developed a Year 2000 Plan to address
the Year 2000 Problem on a timely basis, (iii) is taking all actions
necessary to meet the schedule and goals of the Year 2000 Plan and (iv)
has established adequate reserves to implement the Year 2000 Plan. The
Originator does not reasonably anticipate that the Year 2000 Problem
could have a Material Adverse Effect.
2. Section 7.1 of the Existing Agreement is hereby amended to
add the following new clause (ix) thereto:
(xi) the Year 2000 Problem.
3. Exhibit I to the Existing Agreement is hereby amended to
add the following new definitions thereto in the appropriate alphabetical order:
"YEAR 2000 PLAN" means a plan to prevent the Year 2000 Problem
from having an adverse effect upon the business, financial condition,
operations, property or prospects of a Person.
"YEAR 2000 PROBLEM" means, with respect to the Originator, the
risk that computer applications directly used by it cannot or will not:
(a) handle date information involving any and all dates before, during
and/or after January 1, 2000, including accepting input, providing
output and performing date calculations in whole or in part; (b)
operate accurately without interruption on and in respect of any and
all dates before, during and/or after January 1, 2000; and (c) store
and provide date input information without creating any ambiguity as to
the century.
4. Except as expressly amended hereby, the Existing Agreement
is hereby ratified and confirmed.
5. This Amendment shall become effective when counterparts
hereof have been duly executed by the Originator and the Buyer and delivered to
the Agent.
6. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their duly authorized officers as of
the date hereof.
YELLOW FREIGHT SYSTEM, INC.
By: _______________________________
Name:
Title:
YELLOW RECEIVABLES CORPORATION
By: ________________________________
Name:
Title:
CONSENTED TO AS OF THE DATE FIRST ABOVE
WRITTEN:
THE FIRST NATIONAL BANK OF CHICAGO, as Agent
By: ________________________________________
Authorized Signatory
2
AMENDMENT NO. 1 TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
This Amendment No. 1 (the "Amendment") is dated as of July 28, 2000
among Yellow Receivables Corporation (the "Seller"), the Investors, Falcon Asset
Securitization Corporation ("FALCON") and Bank One, NA (formerly known as The
First National Bank of Chicago), as agent (the "Agent").
W I T N E S S E T H :
WHEREAS, the Seller, the Investors, FALCON and the Agent are parties to
that certain Amended and Restated Receivables Purchase Agreement dated as of
July 30, 1999 (the "Agreement"); and
WHEREAS, the Seller, the Investors, FALCON and the Agent desire to
amend (i) the Agreement and (ii) the Fee Letter in certain respects more fully
described hereinafter;
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 Agreement.
2. Amendments to the Agreement.
2.1. Amendment to Section 7.1(i). Section 7.1(i) of the Agreement is
hereby amended by deleting the percentage "2.75%" where it appears therein and
inserting the percentage "2.5%" in lieu thereof.
2.2. Amendment to Section 5.1(m). Section 5.1(m) of the Agreement is
hereby amended by deleting the phrase "Outstanding Balance of the Receivables"
where it appears therein and inserting the phrase "Purchase Limit" in lieu
thereof.
2.3. Amendment to definition of Aggregate Reserve Percentage. The
definition of "Aggregate Reserve Percentage" appearing in Exhibit I to the
Agreement is hereby amended in its entirety to read as set forth below:
"`Aggregate Reserve Percentage' means, (i) on any date of
determination on which the senior unsecured debt of Yellow Corporation is rated
at least BBB- by Standard & Poor's Ratings Group and Baa3 by Xxxxx'x Investors
Service, Inc., the greater of (a) the sum of the Loss Reserve Percentage, the
Discount Reserve Percentage and the Servicer Fee Percentage, each as then in
effect, and (b) 10%; and (ii) on any date of determination which the senior
unsecured debt of Yellow Corporation has ceased to be rated at least BBB- by
Standard & Poor's Ratings Group and Baa3 by Xxxxx'x Investors Service, Inc., the
greater of (a) the sum of the
Loss Reserve Percentage, the Dilution Reserve Percentage, the Discount Reserve
Percentage and the Servicer Fee Percentage, each as then in effect, and (b)
20%."
2.4. Addition of Certain Definitions. Exhibit I to the Agreement is
hereby amended by adding the following definitions thereto:
"`Dilution Horizon Ratio' means, on any date of determination:
(i) the aggregate amount of Receivables generated during the 4-month period then
most recently ended, divided by (ii) the Net Receivables Balance on such date."
"`Dilution Reserve Percentage' means, on any date of
determination, the percentage determined pursuant to the following formula:
{(2.00 x ED) + [(DS -- ED) x (DS/ED)]} x DHR
where:
ED = the Expected Dilution on such date;
DS = the Dilution Spike as of such date; and
DHR = the Dilution Horizon Ratio on such date."
"`Dilution Ratio' means, as of the last day of any calendar
month, a percentage equal to (i) the aggregate amount of Dilutions which
occurred during such month, divided by (ii) the aggregate amount of Receivables
generated by the Originator 4 months prior to such month."
"`Dilution Reserve' means, on any date, an amount equal to (i)
the Dilution Reserve Percentage, multiplied by (ii) the Net Receivables Balance
as of the opening of business of the Servicer on such date."
"`Dilution Spike' means, on any date of determination, the
highest Dilution Ratio for any month during the 12 months then most recently
ended."
"`Dilutions' means, at any time, the aggregate amount of
reductions in the Outstanding Balances of the Receivables as a result of any
setoff, discount, adjustment or otherwise, other than cash Collections on
account of the Receivables."
"`Expected Dilution' means, on any date of determination, the
average of the Dilution Ratios for the 12 months then most recently ended."
2.5. Amendment to the definition of Liquidity Termination Date. The
definition of "Liquidity Termination Date" appearing in Exhibit I to the
Agreement is hereby amended by deleting the date "July 30, 2000" where it
appears therein and inserting the date "July 29, 2001" in lieu thereof.
2.6. Amendment to Increase Commitment Amount. The signature pages to
the Agreement are amended to delete the amounts set forth thereon in the column
entitled
"COMMITMENT" and to substitute therefor the respective amounts set forth on the
signature pages to this Amendment.
2.7. Amendment to the Definition of Purchase Limit. The definition of
"Purchase Limit" is hereby amended by deleting the amount "$175,000,000" where
it appears therein and inserting the amount "$200,000,000" in lieu thereof.
3. Conditions to Effectiveness of Amendment. The effectiveness of this
Amendment is subject to the satisfaction of the conditions precedent that:
3.1. Amendment. The Agent shall have received, on or before the date
hereof (i) executed counterparts of this Amendment, duly executed by each of the
parties hereto, (ii) a copy of the resolutions of the Board of Directors of the
Seller approving such Person's execution, delivery and performance of the
Agreement, as amended by this Amendment, certified by its Secretary or Assistant
Secretary, (iii) a certificate of the Secretary or Assistant Secretary of the
Seller certifying the names and true signatures of the officers authorized to
sign this Amendment, and (iv) an opinion of counsel of the Seller in form and
substance satisfactory to the Agent.
3.2. Representations and Warranties. As of the date hereof, both before
and after giving effect to this Amendment, all of the representations and
warranties contained in the Agreement and in each other Transaction Document
(other than those that speak expressly only as of a different date) shall be
true and correct in all material respects as though made on the date hereof (and
by its execution hereof, of the Seller shall be deemed to have represented and
warranted such).
3.3. Servicer Defaults. As of the date hereof, both before and after
giving effect to this Amendment, no Servicer Default shall have occurred and be
continuing (and by its execution hereof, of the Seller shall be deemed to have
represented and warranted such).
4. Miscellaneous.
4.1. Effect; Ratification. The amendments set forth herein are
effective solely for the purposes set forth herein and shall be limited
precisely as written, and shall not be deemed to (i) be a consent to any
amendment, waiver or modification of any other term or condition of the
Agreement or of any other instrument or agreement referred to therein; or (ii)
prejudice any right or remedy which the Investors, FALCON and the Agent may now
have or may have in the future under or in connection with the Agreement or any
other instrument or agreement referred to therein. Each reference in the
Agreement to "this Agreement," "herein," "hereof" and words of like import and
each reference in the other Transaction Documents to the "Agreement" shall mean
the Agreement as amended hereby. This Amendment shall be construed in connection
with and as part of the Agreement and all terms, conditions, representations,
warranties, covenants and agreements set forth in the Agreement and each other
instrument or agreement referred to therein, except as herein amended, are
hereby ratified and confirmed and shall remain in full force and effect.
4.2. Transaction Documents. This Amendment is a Transaction Document
executed pursuant to the Agreement and shall be construed, administered and
applied in accordance with the terms and provisions thereof.
5. Costs and Expenses. The Seller agrees to pay all costs, fees, and
out-of-pocket expenses (including attorneys' fees and time charges of attorneys
for the Agent, which attorneys may be employees of the Agent) incurred by the
Agent in connection with the preparation, execution and enforcement of this
Amendment.
6. 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.
7. 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.
IN WITNESS WHEREOF, the Seller, the Investors, FALCON and the Agent
have executed this Amendment as of the date first above written.
YELLOW RECEIVABLES CORPORATION
By: ________________________________
Title: _____________________________
Address for Notices:
Yellow Receivables Corporation
00000 Xxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
FALCON ASSET SECURITIZATION
CORPORATION
By: ________________________________
Authorized Signatory
Address for Notices:
Falcon Asset Securitization
Corporation
c/o Bank One, NA
Asset-Backed Finance
1 Bank Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxxxx Xxxxx
Fax: (000) 000-0000
INVESTORS:
COMMITMENT PRO RATA SHARE
---------- --------------
$200,000,000 100% BANK ONE, NA (formerly known
as THE FIRST NATIONAL BANK
OF CHICAGO), as Investor and as
Agent
By: __________________________
Title: _________________________
Address for notices:
Bank One, NA
Suite 0596, 1-21
1 Bank Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxxxx Xxxxx
Fax: (000) 000-0000
==============
$200,000,000 PURCHASE LIMIT
AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT is entered into as of May 1, 2001 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 (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. All references in the Existing Agreement to "The First
National Bank of Chicago," "First Chicago," and "One First National Plaza" are
hereby replaced with "Bank One, NA," "Bank One" and "1 Bank One Plaza,"
respectively.
2.2. Section 1.9 of the Existing Agreement is hereby amended
to delete "2.0%" where it appears and to substitute in lieu thereof "1.0%."
2.3. The following definitions set forth in Exhibit I to the
Existing Agreement are hereby amended and restated in their entirety to read,
respectively, as follows:
"AGGREGATE RESERVE PERCENTAGE" means, on any date of
determination, the greater of (a) the sum of the Loss Reserve
Percentage, the Discount Reserve Percentage, the Dilution Reserve
Percentage and the Servicer Fee Percentage, each as then in effect, and
(b) 20%.
"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, for that portion of the Receivables
representing Deferred Revenue, 15% 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 remains 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.
"LIQUIDITY TERMINATION DATE" means April 30, 2002, as extended
from time to time pursuant to the terms hereof.
2.4. The following new definitions are hereby inserted in
their appropriate alphabetical order in Exhibit I to the Existing Agreement:
"DILUTION HORIZON RATIO" means, on any date of determination:
(i) the aggregate amount of Receivables generated during the 3-month
period then most recently ended, divided by (ii) the Net Receivables
Balance on such date.
"DILUTION RESERVE PERCENTAGE" means, on any date of
determination, the percentage determined pursuant to the following
formula:
{(2.00 x ED) + [(DS - ED) x (DS/ED) ]} x DHR
WHERE:
ED = the Expected Dilution on such date;
DS = the Dilution Spike as of such date; and
2
DHR = the Dilution Horizon Ratio on such date.
"DILUTION RESERVE" means, on any date, an amount equal to (i)
the Dilution Reserve Percentage, multiplied by (ii) the Net Receivables
Balance as of the opening of business of the Servicer on such date.
"DILUTION SPIKE" means, on any date of determination, the
highest Dilution Ratio for any month during the 12 months then most
recently ended.
"EXPECTED DILUTION" means, on any date of determination, the
average of the Dilution Ratios for the 12 months then most recently
ended.
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 contained in Section 2 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 each of the following
conditions precedent has been satisfied:
(a) the Agent has received counterparts of this Amendment,
duly executed by the Seller, the Agent, Falcon and the Investor, and
(b) the Agent has received counterparts of a second amended
and restated Fee Letter of even date herewith, duly executed by the
Seller and the Agent.
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.
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
3
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
4
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:
5
FALCON ASSET SECURITIZATION CORPORATION
By:
--------------------------------------------------
Authorized Signatory
BANK ONE, NA, INDIVIDUALLY AND AS AGENT
By:
--------------------------------------------------
Authorized Signatory
6
SECOND AMENDMENT TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT is entered into as of January 23, 2002 by and among Yellow Receivables
Corporation, a Delaware corporation (the "SELLER"), Falcon Asset Securitization
Corporation ("FALCON") and Bank One, NA, 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 (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 in the
Existing Agreement.
2. AMENDMENTS.
2.1. The following definition set forth in Exhibit I to the Existing
Agreement is hereby amended and restated in its entirety to read, respectively,
as follows:
"ADJUSTED LIQUIDITY PRICE" means, in determining the FALCON
Transfer Price for any Receivables Interest, an amount equal to:
(i) DC + (ii) RI x [ NDR ]
---------------------------------
1.10
where
RI = the undivided percentage interest evidenced by such
Receivable Interest.
DC = the Deemed Collections.
NDR = the Outstanding Balance of all Receivables as
to which no payment, or part thereof, remains unpaid for 150 days or
more from the original invoice date for such payment.
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 contained in Section 2 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 the Agent has received
counterparts of this Amendment, duly executed by the Seller, the Agent, Falcon
and the Investor.
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.
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date hereof.
YELLOW RECEIVABLES CORPORATION
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
FALCON ASSET SECURITIZATION
CORPORATION
By:
---------------------------------
Authorized Signatory
BANK ONE NA, as an Investor and as
Agent
By:
---------------------------------
Authorized Signatory
AMENDMENT NO. 2 TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED RECEIVABLES
PURCHASE AGREEMENT is entered into as of April 23, 2002 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 (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. AMENDMENT. The following definition set forth in Exhibit I
to the Existing Agreement is hereby amended and restated in its entirety to read
as follows:
"LIQUIDITY TERMINATION DATE" means April 29, 2003, as extended
from time to time pursuant to the terms hereof.
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 amendment contained in Section 2 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 each of the following
conditions precedent has been satisfied:
(a) the Agent has received counterparts of this Amendment,
duly executed by the Seller, the Agent, Falcon and the Investor, and
(b) the Agent has received counterparts of a third amended and
restated Fee Letter of even date herewith, duly executed by the Seller
and the Agent.
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.
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.
2
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:
3
FALCON ASSET SECURITIZATION CORPORATION
By:
-----------------------------------
Authorized Signatory
BANK ONE, NA, INDIVIDUALLY AND AS AGENT
By:
-----------------------------------
Authorized Signatory
4
WAIVER AND AMENDMENT NO. 3 TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
THIS WAIVER AND AMENDMENT NO. 3 TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT (this "AMENDMENT") is entered into as of August
1, 2002 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 (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 waive a certain Servicer
Default that exists under the Existing Agreement and 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. WAIVER. Falcon, the Investor and the Agent hereby waive the
Servicer Default that occurred under Section 7.1(d)(iii) of the Existing
Agreement for the month ended June 30, 2002.
3. AMENDMENTS.
3.1. Section 7.1(d)(iii) of the Existing 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 3.50%
at any time from and including August 1, 2002 through and including
December 31, 2002, or 2.50% at any time thereafter.
3.2. The definition of "LOSS RESERVE PERCENTAGE" in the
Existing 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 12 rolling 3-month
average Default Ratio, 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 18% at any time from and including August 1, 2002 through
and including December 31, 2002.
4. 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 waiver and 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 5 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.
5. 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 the Seller, the Agent, Falcon
and the Investor.
6. RATIFICATION. The Existing Agreement, as modified hereby,
is hereby ratified, approved and confirmed in all respects.
7. 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.
8. 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.
9. 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.
10. 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.
2
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:
3
FALCON ASSET SECURITIZATION CORPORATION
By:
----------------------------------
Authorized Signatory
BANK ONE, NA, INDIVIDUALLY AND AS AGENT
By:
----------------------------------
Authorized Signatory
4
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:
2
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.
3
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:
-----------------------------------------
Name:
Title:
YELLOW RECEIVABLES CORPORATION
By:
-----------------------------------------
Name:
Title:
4
FALCON ASSET SECURITIZATION CORPORATION
By:
-----------------------------------------
Authorized Signatory
BANK ONE, NA, INDIVIDUALLY AND AS AGENT
By:
-----------------------------------------
Director, Capital Markets
5
AMENDMENT NO. 4 TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 4 TO AMENDED AND RESTATED RECEIVABLES
PURCHASE AGREEMENT (this "AMENDMENT") is entered into as of April 29, 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 (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(d) of the Existing Agreement is hereby
amended and restated in its entirety to read as follows:
(d) As at the end of any calendar month:
(i) the average of the Delinquency Ratios for each of the
three consecutive calendar months then most recently ended shall exceed
2.50%;
(ii) the average of the Dilution Ratios for each of the three
consecutive calendar months then most recently ended shall exceed
4.00%; or
(iii) the average of the Default Ratios for each of the three
consecutive calendar months then most recently ended shall exceed 3.00%
at any time from and including April 1, 2003 through and including June
30, 2003, or 2.50% at any time thereafter.
2.2. Section 8.2 (a) of the Existing Agreement is hereby
amended and restated in its entirety to read as follows:
Section 8.2. Increased Cost and Reduced Return.
(a) If after the date hereof, any Funding Source shall be
charged any fee, expense or increased cost on account of the adoption
of any applicable law, rule or regulation (including any applicable
law, rule or regulation regarding capital adequacy), any accounting
principles or any change therein in any of the foregoing, or any change
in the interpretation or administration thereof by the Financial
Accounting Standards Board ("FASB"), any governmental authority, any
central bank or any comparable agency charged with the interpretation
or administration thereof, or compliance with any request or directive
(whether or not having the force of law) of any such authority or
agency (a "REGULATORY CHANGE"): (i) which subjects any Funding Source
to any charge or withholding on or with respect to any Funding
Agreement or a Funding Source's obligations under a Funding Agreement,
or on or with respect to the Receivables, or changes the basis of
taxation of payments to any Funding Source of any amounts payable under
any Funding Agreement (except for changes in the rate of tax on the
overall net income of a Funding Source) or (ii) which imposes, modifies
or deems applicable any reserve, assessment, insurance charge, special
deposit or similar requirement against assets of, deposits with or for
the account of a Funding Source, or credit extended by a Funding Source
pursuant to a Funding Agreement or (iii) which imposes any other
condition the result of which is to increase the cost to a Funding
Source of performing its obligations under a Funding Agreement, or to
reduce the rate of return on a Funding Source's capital as a
consequence of its obligations under a Funding Agreement, or to reduce
the amount of any sum received or receivable by a Funding Source under
a Funding Agreement or to require any payment calculated by reference
to the amount of interests or loans held or interest received by it,
then, upon demand by the Agent, the Seller shall pay to the Agent, for
the benefit of the relevant Funding Source, such amounts charged to
such Funding Source or compensate such Funding Source for such
reduction. For the avoidance of doubt, if FASB Interpretation No. 46,
or any other change in accounting standards or the issuance of any
other pronouncement, release or interpretation, causes or requires the
consolidation of all or a portion of the assets and liabilities of
FALCON or Seller with the assets and liabilities of the Agent, any
Financial Institution or any other Funding Source, such event shall
constitute a circumstance on which such Funding Source may base a claim
for reimbursement under this Section.
2.3. The definition of "DILUTION RATIO" in the Existing
Agreement is hereby amended and restated in its entirety to read as follows:
"DILUTION RATIO" means, as of the last day of any calendar
month, a percentage equal to (i) the aggregate amount of Dilutions
which occurred during such month, divided by (ii) the aggregate amount
of Receivables generated by the Originator 2 months prior to such
month.
2
2.4. The definition of "DILUTION HORIZON RATIO" in the
Existing Agreement is hereby amended and restated in its entirety to read as
follows:
"DILUTION HORIZON RATIO" means, on any date of determination:
(i) the aggregate amount of Receivables generated during the 2-month
period then most recently ended, divided by (ii) the Net Receivables
Balance on such date.
2.5. The definition of "LIQUIDITY TERMINATION DATE" in the
Existing Agreement is hereby amended and restated in its entirety to read as
follows:
"LIQUIDITY TERMINATION DATE" means April 27, 2004, as extended
from time to time pursuant to the terms hereof.
2.6. The definition of "LOSS RESERVE PERCENTAGE" in the
Existing 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 15% at any time
from and including April 1, 2003 through and including June 30, 2003.
2.7. "EXHIBIT III" to the Existing Agreement is hereby amended
and restated in its entirety to read as follows:
EXHIBIT III
LOCKBOXES; COLLECTION ACCOUNTS;
CONCENTRATION ACCOUNTS; AND DEPOSITARY ACCOUNTS
YELLOW TRANSPORTATION, INC. (F/K/A YELLOW FREIGHT SYSTEM, INC.)
TYPE OF ACCT. ACCOUNT # BANK NAME CITY, STATE
---------------------------------------------------------------------------------------------------
Concentration 3750962424 Bank of America Dallas, TX
YELLOW RECEIVABLES CORPORATION
Collection 3750962356 Bank of America Dallas, TX
Collection 3750967393* Bank of America Dallas, TX
Concentration 3751433761 Bank of America Dallas, TX
Depository 55-66681 Bank One (f/k/a First Chicago) Chicago, IL
Concentration 55-03450* Bank One (f/k/a First Chicago) Chicago, IL
* Assigned to Yellow Receivables Corporation by Yellow
Transportation, Inc. (f/k/a Yellow Freight System, Inc.)
3
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 the Agent has received
counterparts of this Amendment, duly executed by the Seller, the Agent, Falcon
and the Investor.
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.
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.
4
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:
5
FALCON ASSET SECURITIZATION CORPORATION
By:
-----------------------------------------
Authorized Signatory
BANK ONE, NA, INDIVIDUALLY AND AS AGENT
By:
-----------------------------------------
Name:
Title:
6
