Exhibit 10-n
================================================================================
AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT
Dated as of September 27, 2001
among
XXXXX EXHAUST LLC,
XXXXXXX RIDE CONTROL PRODUCTS, INC,
MAREMONT EXHAUST PRODUCTS, INC.,
PUROLATOR PRODUCTS NA, INC.,
MERITOR HEAVY VEHICLE SYSTEMS, LLC,
MERITOR LIGHT VEHICLE SYSTEMS, INC.,
MERITOR HEAVY VEHICLE BRAKING SYSTEMS (USA), INC.,
EUCLID INDUSTRIES, LLC,
and
ARVINMERITOR OE, LLC
as Originators,
and
ARVINMERITOR RECEIVABLES CORPORATION,
as Buyer
================================================================================
Exhibit 10-n
TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. DEFINITIONS AND RELATED MATTERS....................................1
Section 1.1. Defined Terms......................................................1
Section 1.2. Other Interpretive Matters.........................................2
SECTION 2. AGREEMENT TO CONTRIBUTE, PURCHASE AND SELL.........................2
Section 2.1. Purchase and Sale..................................................2
Section 2.2. Timing of Contribution, Purchases..................................2
Section 2.3. Purchase Price.....................................................2
Section 2.4. No Recourse or Assumption of Obligations...........................3
SECTION 3. ADMINISTRATION AND COLLECTION......................................4
Section 3.1. Collection Agent...................................................4
Section 3.2. Deemed Collections.................................................4
Section 3.3. Application of Collections.........................................4
Section 3.4. Responsibilities of Originator.....................................5
SECTION 4. REPRESENTATIONS AND WARRANTIES.....................................5
Section 4.1. Mutual Representations and Warranties..............................5
Section 4.2. Additional Representations by Each Originator......................6
SECTION 5. GENERAL COVENANTS..................................................7
Section 5.1. Covenants..........................................................7
Section 5.2. Organizational Separateness.......................................11
SECTION 6. TERMINATION OF PURCHASES..........................................11
Section 6.1. Voluntary Termination.............................................11
Section 6.2. Automatic Termination.............................................11
SECTION 7. INDEMNIFICATION...................................................11
Section 7.1. Originators' Indemnity............................................11
Section 7.2. Indemnification Due to Failure to Consummate Purchase.............12
SECTION 8. MISCELLANEOUS.....................................................12
Section 8.1. Amendments, Waivers, etc..........................................12
Section 8.2. Assignment of Receivables Purchase Agreement......................13
Section 8.3. Binding Effect; Assignment.......................................13
Section 8.4. Survival..........................................................13
Section 8.5. Costs, Expenses and Taxes.........................................13
-i-
Section 8.6. Execution in Counterparts; Integration............................14
Section 8.7. Governing Law; Submission to Jurisdiction.........................14
Section 8.8. No Proceedings....................................................14
Section 8.9. Loans by Buyer to Originators....................................14
Section 8.10. Notice............................................................14
Section 8.11. Entire Agreement..................................................15
SIGNATURE....................................................................................1
Exhibit A Purchase Price
-ii-
THIS AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT dated as of
September 27, 2001 (this "Agreement") is among XXXXX EXHAUST LLC, an Indiana
limited liability company ("Xxxxx Exhaust"), XXXXXXX RIDE CONTROL PRODUCTS,
INC., a Delaware corporation ("Xxxxxxx"), MAREMONT EXHAUST PRODUCTS, INC., a
Delaware corporation ("Maremont"), PUROLATOR PRODUCTS NA, INC., a Delaware
corporation ("Purolator"), MERITOR HEAVY VEHICLE SYSTEMS, LLC, a Delaware
limited liability company, MERITOR LIGHT VEHICLE SYSTEMS, INC., a Delaware
corporation ("Light Vehicle"), MERITOR HEAVY VEHICLE BRAKING SYSTEMS (USA),
INC., a Delaware corporation, EUCLID INDUSTRIES, LLC, a Delaware limited
liability company, and ARVINMERITOR OE, LLC, a Delaware limited liability
company ("AOE") (each an "Originator" and collectively, the "Originators"), and
ARVINMERITOR RECEIVABLES CORPORATION, a Delaware corporation ("Buyer"). The
parties agree as follows:
PRELIMINARY STATEMENT
The Buyer, Xxxxx Exhaust, Xxxxxxx, Maremont an Purolator are parties to
a Purchase and Sale Agreement, dated as of March 30, 2001 (the "Original
Agreement"); and
Subject to and upon the terms and conditions set forth herein, the
parties desire to amend and restate the Original Agreement in the form of this
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and the other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
SECTION 1. DEFINITIONS AND RELATED MATTERS.
Section 1.1. Defined Terms. In this Agreement, unless otherwise
specified or defined herein: (a) capitalized terms are used as defined in
Schedule I to the Amended and Restated Receivables Sale Agreement dated as of
the date hereof (as amended or modified from time to time, the "Second Tier
Agreement") among Buyer, ArvinMeritor, Inc., as collection agent (the "Initial
Collection Agent"), the Purchaser Agents from time to time party thereto, the
Related Committed Purchasers from time to time party thereto, the Conduit
Purchasers from time to time party thereto and ABN AMRO Bank N.V. as the Agent,
as such agreement may be amended or modified from time to time; and (b) terms
defined in Article 9 of the UCC and not otherwise defined herein are used as
defined in such Article 9 as in effect on the date hereof.
In addition, the following terms will have the meanings specified below:
"Available Funds" is defined in Section 2.3(b) hereof.
"Closing Date" means the date on which this Agreement and the Second
Tier Agreement become effective in accordance with their terms.
"Excluded Losses" is defined in Section 7.1 hereof.
"Initial Funding Date" means September 27, 2001.
"Settlement Date" means, with respect to any Settlement Period, the 25th
day of the immediately succeeding calendar month (or, if such day is not a
Business Day, the next preceding Business Day).
"Settlement Period" means a calendar month (or, in the case of the first
Settlement Period, the period from the Initial Funding Date to the end of the
next succeeding calendar month following the calendar month in which the Initial
Funding Date occurs).
"Trigger Event" means that (x) the outstanding principal amount of the
Subordinated Note exceeds the value of Buyer's interest in the Receivables
(determined in accordance with GAAP), and (y) such condition has continued for
five Business Days.
Section 1.2. Other Interpretive Matters. In this Agreement, unless
otherwise specified: (a) references to any Section or Annex refer to such
Section of, or Annex to, this Agreement, and references in any Section or
definition to any subsection or clause refer to such subsection or clause of
such Section or definition; (b) "herein," "hereof," "hereto," "hereunder" and
similar terms refer to this Agreement as a whole and not to any particular
provision of this Agreement; (c) "including" means including without limitation,
and other forms of the verb "to include" have correlative meanings; (d) the word
"or" is not exclusive; and (e) captions are solely for convenience of reference
and shall not affect the meaning of this Agreement.
SECTION 2. AGREEMENT TO CONTRIBUTE, PURCHASE AND SELL.
Section 2.1. Purchase and Sale. On the terms and subject to the
conditions set forth in this Agreement, each Originator hereby sells to Buyer,
and Buyer hereby purchases from each Originator, all of such Originator's right,
title and interest in, to and under the Receivables originated by such
Originator, all Related Security, Lock-Box Accounts and all proceeds thereof
(including all Collections with respect thereto), in each case whether now
existing or hereafter arising or acquired.
Section 2.2. Timing of Contribution, Purchases. All of the remaining
Receivables and Related Security existing at the opening of the Originators'
business on the Initial Funding Date are hereby sold to Buyer as of the Initial
Funding Date. After the Initial Funding Date, each Receivable and Related
Security shall be deemed to have been sold to Buyer immediately (and without
further action by any Person) upon the creation of such Receivable. The proceeds
with respect to each Receivable (including all Collections with respect thereto)
shall be sold at the same time as such Receivable, whether such proceeds (or
Collections) exist at such time or arise or are acquired thereafter.
Section 2.3. Purchase Price. (a) The aggregate purchase price for the
Receivables originated by an Originator sold on the Initial Funding Date shall
be such amount as agreed upon prior to the Initial Funding Date between such
Originator and Buyer to be the fair market value
-2-
of such Receivables on such date, which shall equal the excess of the (i)
estimated aggregate outstanding balance of such Receivables over (ii) an amount
agreed upon by Buyer and such Originator representing the uncertainty of payment
and cost of purchase of such Receivables. The purchase price for Receivables
subsequently sold during any Settlement Period shall be calculated in accordance
with the provisions set forth in Exhibit A hereto.
(b) On the Initial Funding Date, Buyer shall pay each Originator the
purchase price for the Receivables originated by it sold on that date. On each
Business Day after the Initial Funding Date on which an Originator sells any
Receivables originated by it to Buyer pursuant to the terms of Section 2.1,
until the termination of the purchase and sale of Receivables under Section 6
hereof, Buyer shall pay to such Originator the purchase price of such
Receivables (i) by depositing into such account as such Originator shall specify
immediately available funds from monies then held by or on behalf of Buyer
solely to the extent that such monies do not constitute Collections that are
required to be identified or are deemed to be held by the Collection Agent
pursuant to the Second Tier Agreement for the benefit of, or required to be
distributed to, the Agent or the Purchasers pursuant to the Second Tier
Agreement or required to be paid to the Collection Agent as the Collection Agent
Fee, or otherwise necessary to pay current expenses of Buyer (in its reasonable
discretion) (such available monies, the "Available Funds") and provided that
such Originator has paid all amounts then due by such Originator hereunder or
(ii) by increasing the principal amount owed to such Originator under a
promissory note (as amended or modified from time to time, each a "Subordinated
Note" and collectively the "Subordinated Notes") executed and delivered by Buyer
to the order of such Originator as of the Initial Funding Date. The outstanding
principal amount owed to an Originator under the related Subordinated Note may
be reduced from time to time as provided in Section 3.2 hereof or by payments
made by Buyer from Available Funds, provided that such Originator has paid all
amounts then due by such Originator hereunder. Each Originator shall make all
appropriate record keeping entries with respect to amounts due to such
Originator under the related Subordinated Note to reflect payments by Buyer
thereon and increases of the principal amount thereof, and such Originator's
books and records shall constitute rebuttable presumptive evidence of the
principal amount of and accrued interest owed to such Originator under the
related Subordinated Note.
Section 2.4. No Recourse or Assumption of Obligations. Except as
specifically provided in this Agreement, the contribution, purchase and sale of
Receivables under this Agreement shall be without recourse to the Originators.
Each Originator and Buyer intend the transactions hereunder to constitute true
sales of Receivables by such Originator to Buyer, providing Buyer with the full
risks and benefits of ownership of the Receivables originated by such Originator
(such that the Receivables would not be property of such Originator's estate in
the event of such Originator's bankruptcy). If, however, despite the intention
of the parties, the conveyances provided for in this Agreement are determined
not to be "true sales" of Receivables from the Originators to Buyer, then this
Agreement shall also be deemed to be a "security agreement" within the meaning
of Article 9 of the UCC and each Originator hereby grants to Buyer a "security
interest" within the meaning of Article 9 of the UCC in all of such Originator's
right, title and interest in and to the Receivables, all Related Security,
Lock-Box Accounts and all proceeds thereof (including all Collection with
respect thereto) originated by it, now existing and thereafter created, to
secure a loan in an amount equal to the aggregate purchase prices therefor and
each of such Originator's other payment obligations under this Agreement.
-3-
Buyer shall not have any obligation or liability with respect to any
Receivable, nor shall Buyer have any obligation or liability to any Obligor or
other customer or client of an Originator (including any obligation to perform
any of the obligations of such Originator under any Receivable).
SECTION 3. ADMINISTRATION AND COLLECTION.
Section 3.1. Collection Agent. The Initial Collection Agent shall be
responsible for the servicing, administration and collection of the Receivables,
all on the terms set out in (and subject to any rights to terminate the Initial
Collection Agent as Collection Agent pursuant to) the Second Tier Agreement.
Pursuant to the terms of the Second Tier Agreement, the Initial Collection Agent
has the right to appoint an Affiliate of the Initial Collection Agent to perform
certain services set forth in Article III of the Second Tier Agreement. The
Initial Collection Agent has appointed each Originator as a sub-collection agent
with respect to the Receivables originated by it to perform certain duties as
more fully set forth in the Letter Agreement.
Section 3.2. Deemed Collections. If on any day the outstanding balance
of a Receivable is reduced or cancelled as a result of any defective or rejected
goods or services, any cash discount or adjustment (including any adjustment
resulting from the application of any special refund or other discounts or any
reconciliation), any setoff or credit (whether such claim or credit arises out
of the same, a related, or an unrelated transaction) or other reason not arising
from the financial inability of the Obligor to pay undisputed indebtedness, (i)
the applicable Originator shall be deemed to have received on such day a
Collection on such Receivable in the amount of such reduction or cancellation
and (ii) such Receivable shall thereupon be, or be deemed to be reconveyed to an
Originator. If on any day any representation, warranty, covenant or other
agreement of an Originator related to a Receivable is not true or is not
satisfied, (i) such Originator shall be deemed to have received on such day a
Collection in the amount of the outstanding balance of such Receivable and (ii)
such Receivable shall thereupon be, or be deemed to be reconveyed to such
Originator. Not later than the first Settlement Date after an Originator is
deemed pursuant to this Section 3.2 to have received any Collections, such
Originator shall transfer to Buyer, in immediately available funds, the amount
of such deemed Collections; provided, however, that if no such application is
required under the Second Tier Agreement, Buyer and such Originator may agree to
reduce the outstanding principal amount of the Subordinated Note in lieu of all
or part of such transfer. To the extent that Buyer subsequently collects any
payment with respect to any such "receivable," Buyer shall pay the applicable
Originator an amount equal to the amount so collected, such amount to be payable
not later than the first Settlement Date after Buyer has so collected such
amount.
Section 3.3. Application of Collections. Any payment by an Obligor in
respect of any indebtedness owed by it to the related Originator shall, except
as otherwise specified by such Obligor (including by reference to a particular
invoice), or required by the related contracts or law, be applied, first, as a
Collection of any Receivable or Receivables then outstanding of such Obligor in
the order of the age of such Receivables, starting with the oldest of such
Receivables, and, second, to any other indebtedness of such Obligor to such
Originator.
-4-
Section 3.4. Responsibilities of Originator. Each Originator shall pay
when due all Taxes payable in connection with the Receivables originated by it
or their creation or satisfaction. Each Originator shall perform all of its
obligations under agreements related to the Receivables originated by it to the
same extent as if interests in such Receivables had not been transferred
hereunder. The Agent's or any Purchaser's exercise of any rights hereunder or
under the Second Tier Agreement shall not relieve any Originator from such
obligations. Neither the Agent nor any Purchaser shall have any obligation to
perform any obligation of any Originator in connection with the Receivables.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
Section 4.1. Mutual Representations and Warranties. Each of the
Originators and Buyer represents and warrants to the others as follows:
(a) Existence and Power. It is a corporation or limited
liability company, as applicable, duly organized, validly existing and
in good standing under the laws of its state of organization and in each
jurisdiction in which the conduct of its business requires that it be
qualified to do business in such jurisdiction and has all company power
and authority and all governmental licenses, authorizations, consents
and approvals required to carry on its business in each jurisdiction in
which its business is now conducted, except where failure to obtain such
license, authorization, consent or approval would not have a material
adverse effect on (i) its ability to perform its obligations under, or
the enforceability of, any Transaction Document to which it is a party,
(ii) its business or financial condition, (iii) the interests of Buyer
or its assigns under the Transaction Documents or (iv) the
enforceability or collectibility of a material portion of the
Receivables.
(b) Authorization and No Contravention. Its execution, delivery
and performance of each Transaction Document to which it is a party (i)
are within its powers, (ii) have been duly authorized by all necessary
company action, (iii) do not contravene or constitute a default under:
(A) any applicable law, rule or regulation, (B) its charter or by-laws
or operating agreement, as applicable, or (C) any material agreement,
order or other instrument to which it is a party or its property is
subject and (iv) will not result in any Adverse Claim on any Receivable,
Related Security or Collection or give cause for the acceleration of any
of its indebtedness.
(c) No Consent Required. Other than the filing of financing
statements no approval, authorization or other action by, or filings
with, any Governmental Authority or other Person is required in
connection with the execution, delivery and performance by it of any
Transaction Document to which it is a party or any transaction
contemplated thereby.
(d) Binding Effect. Each Transaction Document to which it is a
party constitutes the legal, valid and binding obligation of such Person
enforceable against that Person in accordance with its terms, except as
limited by bankruptcy, insolvency, or other
-5-
similar laws of general application relating to or affecting the
enforcement of creditors' rights generally and subject to general
principles of equity.
(e) Accounting for Sale. It will not, account for, or otherwise
treat the transactions contemplated hereby other than as a sale of
Receivables or inconsistent with the Buyer's ownership interest in the
Receivables, Related Security and Collections.
Section 4.2. Additional Representations by Each Originator. Each
Originator further represents and warrants to Buyer as follows:
(a) Perfection of Ownership Interest. Immediately preceding its
sale of Receivables to Buyer, such Originator was the owner of, and
effectively sold, such Receivables to Buyer, free and clear of any
Adverse Claim. Buyer owns the Receivables free and clear of any Adverse
Claim other than the interests of the Purchasers and the Agent therein
that are created by the Second Tier Agreement and, in the case of
Receivables not designated as Eligible Receivables, other Adverse
Claims.
(b) Accuracy of Information. All information furnished by each
Originator in writing in connection with any Transaction Document, or
any transaction contemplated thereby, is true and accurate in all
material respects (and was not incomplete by omitting to state a
material fact necessary to make such information not materially
misleading).
(c) No Actions, Suits. There are no actions, suits or other
proceedings (including matters relating to environmental liability)
pending or threatened against or affecting any Originator or any of its
properties, that (i) if adversely determined (individually or in the
aggregate), is likely to have a material adverse effect on the financial
condition of the Parent and its subsidiaries, on a consolidated basis or
on the collectibility of a material portion of the Receivables or (ii)
involve any Transaction Document or any transaction contemplated
thereby. No Originator is in default of any contractual obligation or in
violation of any material order, rule or regulation of any Governmental
Authority, which default or violation is likely to have a material
adverse effect upon (i) the financial condition of the Parent and its
subsidiaries, on a consolidated basis or (ii) the collectibility of a
material portion of the Receivables.
(d) No Material Adverse Change. Since December 31, 2000, there
has been no material adverse change in (i) such Originator's financial
condition, business, operations or prospects or (ii) such Originator's
ability to perform its obligations under any Transaction Document.
(e) Accuracy of Exhibits. All information on Exhibits C and D of
the Second Tier Agreement (to the extent describing an Originator) is
true and complete, subject to any changes permitted by, and notified to
the Agent in accordance with the Second Tier Agreement.
(f) Sales by Originator. Each sale by such Originator to Buyer
of an interest in Receivables has been made for "reasonably equivalent
value" (as such term is used in
-6-
Section 548 of the Bankruptcy Code) and not for or on account of
"antecedent debt" (as such term is used in Section 547 of the Bankruptcy
Code) owed by such Originator to Buyer.
(g) No Potential Termination Event. No Potential Termination
Event has occurred and is continuing.
(h) Eligible Receivables. Each Receivable included in the
Eligible Receivables Balance as an Eligible Receivable on the date of
any Purchase or Incremental Purchase or listed as such on a Periodic
Report is an Eligible Receivable.
(i) Underwriting Collection Practices. To the extent that the
Buyer is the Collection Agent and the relevant Originator is a
sub-collection agent, it has complied with the Credit and Collection
Policy in all material respects, and such policy has not changed in any
material respect since the date hereof.
SECTION 5. GENERAL COVENANTS.
Section 5.1. Covenants. Each Originator hereby covenants and agrees to
comply with the following covenants and agreements, unless Buyer (with the
consent of the Agent) shall otherwise consent:
(a) Financial Reporting. Each Originator will maintain a system
of accounting established and maintained in accordance with GAAP and
will furnish to Buyer:
(i) Within 120 days after each fiscal year of the Parent
copies of Parent's annual audited financial statements
(including a consolidated balance sheet, consolidated statement
of income and retained earnings and statement of cash flows,
with related footnotes) certified by Deloitte & Touche or other
independent certified public accountants of nationally
recognized standing and prepared on a consolidated basis in
conformity with GAAP;
(ii) Within 45 days after each (except the last) fiscal
quarter of each fiscal year of the Parent, copies of the
Parent's unaudited financial statements (including at least a
consolidated balance sheet as of the close of such quarter and
statements of earnings and sources and applications of funds for
the period from the beginning of the fiscal year to the close of
such quarter) certified by the chief financial officer and
prepared in a manner consistent with the financial statements
described in part (A) of clause (i) of this Section 5.1(a);
(iii) copies of all financial statements, reports and
returns which the Parent shall send to its stockholders;
-7-
(iv) Promptly upon becoming available, a copy of each
report or proxy statement filed by the Parent with the
Securities and Exchange Commission or any securities exchange;
and
(v) with reasonable promptness such other information
(including non-financial information) as Buyer may reasonably
request.
(b) Notices. Promptly and in any event within three Business
Days after a Responsible Officer of an Originator obtains knowledge of
any of the following, such Originator will notify Buyer and provide a
description of:
(i) Potential Termination Events. The occurrence of any
Potential Termination Event;
(ii) Representations and Warranties. The failure of any
representations or warranty herein to be true when made in any
material respect;
(iii) Litigation. The institution of any litigation,
arbitration proceeding or governmental proceeding which is
reasonably likely to be material to such Originator or the
collectibility or quality of a material portion of the
Receivables; or
(iv) Judgments. The entry of any uninsured judgment or
decree against such Originator if the aggregate amount of all
such uninsured judgments then outstanding against such
Originator exceeds $10,000,000.
(c) Conduct of Business. Each Originator will perform all
actions necessary to remain duly incorporated or organized, validly
existing and in good standing in its jurisdiction of incorporation or
organization and to maintain good standing and all requisite authority
to conduct its business in each jurisdiction in which it conducts
business.
(d) Compliance with Laws. Each Originator will comply with all
laws, regulations, judgments and other directions or orders imposed by
any Governmental Authority to which each Originator or any Receivable,
any Related Security or Collection may be subject.
(e) Furnishing Information and Inspection of Records. Each
Originator will furnish to Buyer such information concerning the
Receivables originated by it and any Related Security as Buyer may
reasonably request, subject to any confidentiality restrictions. Each
Originator will permit, at any time during regular business hours, Buyer
(or any representatives thereof) (i) to examine and make copies of all
Records, (ii) to visit the offices and properties of such Originator or
office of any other Person for the purpose of examining the Records and
(iii) to discuss matters relating hereto with any of such Originator's
officers, directors, employees or independent public accountants having
knowledge of such matters. Once a year or at any time after the
occurrence and
-8-
during the continuance of a Termination Event relating to a particular
Originator, Buyer may (at the expense of the applicable Originator) have
an independent public accounting firm conduct an audit of the Records or
make test verification of the Receivables and Collections in connection
with the audit and test verifications conducted on behalf of the Agent
under the Second Tier Agreement.
(f) Keeping Records. (i) Each Originator will have and maintain
(A) administrative and operating procedures (including an ability to
recreate Records if originals are destroyed), (B) adequate facilities,
personnel and equipment and (C) all Records and other information
necessary or advisable for collecting the Receivables originated by it
(including Records adequate to permit the immediate identification of
each new Receivable originated by it and all Collections of, and
adjustments to, each existing Receivable originated by it). Each
Originator will give Buyer prior notice of any material change in such
administrative operating procedures.
(ii) Each Originator will, (A) at all times from and after the
date hereof, clearly and conspicuously xxxx its computer and master data
processing books and records with a legend describing Buyer's interest
in the Receivables originated by it and the Collections and (B) upon the
request of the Buyer, so xxxx each contract relating to a Receivable and
deliver to the Buyer all such contracts (including all multiple
originals of such contracts), with any appropriate endorsement or
assignment, or segregate (from all other receivables then owned or being
serviced by it) the Receivables and all contracts relating to each
Receivable and hold in trust and safely keep such contracts so legended
in separate filing cabinets or other suitable containers at such
locations as the Buyer may specify.
(g) Perfection. (i) Each Originator will at its expense,
promptly execute and deliver all instruments and documents and take all
action necessary or requested by the Buyer (including the execution and
filing of financing or continuation statements, amendments thereto or
assignments thereof) to enable the Buyer to exercise and enforce all its
rights against the Receivables originated by it and to vest and maintain
vested in the Buyer a valid, first priority perfected security interest
in such Receivables, the Related Security and the Collections, and
proceeds thereof free and clear of any Adverse Claim (and a perfected
ownership interest in such Receivables, Related Security and Collections
to the extent of the Sold Interest). To the extent permitted by
applicable law, the Buyer will be permitted to sign and file any
continuation statements, amendments thereto and assignments thereof
without the Originator's signature.
(ii) No Originator will change its name, identity or corporate
structure or relocate its state of organization or its chief executive
office or the Records except after thirty (30) days advance notice to
the Buyer and the delivery to the Buyer of all financing statements,
instruments and other documents (including direction letters) requested
by the Buyer; provided, however, that if Xxxxx Exhaust and/or Light
Vehicle merge into AOE whereby AOE is the surviving entity, such
Originators will not have to provide the prior advance notice to the
Buyer. AOE agrees that it will not originate any Receivables until
-9-
after the merger described in the preceding sentence and only from the
two entities merged into AOE.
(iii) Each Originator will at all times maintain its chief
executive offices within a jurisdiction in the USA in which Article 9 of
the UCC (as it may be amended from time to time) is in effect. If any
Originator moves its chief executive office to a location that imposes
Taxes, fees or other charges to perfect the Buyer's interests hereunder,
such Originator will pay all such amounts and any other costs and
expenses incurred in order to maintain the enforceability of the
Transaction Documents, the Sold Interest and the interests of the Buyer
in the Receivables, the Related Security and Collections.
(h) Payments on Receivables, Lock-Box Accounts. Each Originator
will at all times instruct all Obligors to deliver payments on the
Receivables (including Deemed Collections) to a Lock-Box a Lock-Box
Account and will not change any such instructions without the prior
written consent of the Buyer. If any such payments or other Collections
are received by an Originator, it shall hold such payments in trust for
the benefit of the Buyer and promptly (but in any event within two
Business Days after receipt) remit such funds at the direction of the
Buyer. After the occurrence of a Termination Event, such Originator will
not, and will not permit any Collection Agent or other Person to,
commingle Collections or other funds to which the Buyer is entitled with
any other funds, except with respect to the AM Canada Account, but only
through November 30, 2001.
(i) Sales and Adverse Claims Relating to Receivables or Related
Security. Except as otherwise provided herein, no Originator will (by
operation of law or otherwise) dispose of or otherwise transfer, or
create or suffer to exist any Adverse Claim upon, any Receivable,
Related Security and Collections, or any proceeds thereof.
(j) Extension or Amendment of Receivables. Except as otherwise
permitted in the Second Tier Agreement and then subject to Section 1.5
of the Second Tier Agreement, no Originator will extend, amend, rescind
or cancel any Receivable.
(k) Performance of Duties. Each Originator will perform its
duties or obligations in accordance with the provisions of each of the
Transaction Documents to which it is a party. Each Originator (at its
expense) will (i) fully and timely perform in all material respects all
agreements, if any, required to be observed by it in connection with
each Receivable originated by it, (ii) comply in all material respects
with the Credit and Collection Policy, and (iii) refrain from any action
that may impair the rights of Buyer in the Receivables, Collections or
Lock-Box Accounts.
(l) Change in Credit and Collection Policy. No Originator will
make any change in its Credit and Collection Policy which change would
impair the collectibility of any Receivable.
(m) Accounting for Sale. No Originator will account for, or
otherwise treat, the transactions contemplated hereby other than as a
sale of Receivables or inconsistent
-10-
with the Purchasers' ownership interests in the Receivables Related
Security and Collections.
(n) Certain Agreements. Except as otherwise permitted by this
Agreement, no Originator will amend, modify, waive, revoke or terminate
any Transaction Document to which it is a party.
Section 5.2. Organizational Separateness. Each Originator agrees not to
take any action that would cause Buyer to violate its articles of incorporation
or certificate of incorporation, as appropriate, and bylaws. Buyer agrees to
conduct its business in a manner consistent with its articles of incorporation
or certification of incorporation, as appropriate, and bylaws or its limited
liability company agreement or operating agreement, as applicable.
SECTION 6. TERMINATION OF PURCHASES.
Section 6.1. Voluntary Termination. The purchase and sale of Receivables
pursuant to this Agreement may be terminated by any party, upon at least five
Business Days' prior written notice to the other parties.
Section 6.2. Automatic Termination. The purchase and sale of Receivables
pursuant to this Agreement shall automatically terminate upon the occurrence of
(i) a Bankruptcy Event with respect to any Originator, (ii) a Trigger Event or
(iii) the Termination Date.
SECTION 7. INDEMNIFICATION.
Section 7.1. Originators' Indemnity. Without limiting any other rights
any Person may have hereunder or under applicable law, each Originator, jointly
and severally, hereby indemnifies and holds harmless Buyer and its officers,
directors, agents and employees (each an "Indemnified Party") from and against
any and all damages, losses, claims, liabilities, penalties, Taxes, costs and
expenses (including reasonable attorneys' fees and court costs actually
incurred) (all of the foregoing collectively, the "Indemnified Losses") at any
time imposed on or incurred by any Indemnified Party arising out of or otherwise
relating to any Transaction Document, the transactions contemplated thereby, or
any action taken or omitted by any of the Indemnified Parties, whether arising
by reason of the acts to be performed by such Originator hereunder or otherwise,
excluding only Indemnified Losses ("Excluded Losses") to the extent (a) a final
judgment of a court of competent jurisdiction holds such Indemnified Losses
resulted solely from gross negligence or willful misconduct of the Indemnified
Party seeking indemnification, (b) solely due to the credit risk or financial
inability to pay of the Obligor and for which reimbursement would constitute
recourse to such Originator or the Collection Agent for uncollected or
uncollectible Receivables or (c) such Indemnified Losses include Taxes on, or
measured by, the overall net income or gross receipts of the Buyer. Without
limiting the foregoing indemnification, but subject to the limitations set forth
in clauses (a), (b) and (c) of the previous sentence, each Originator, jointly
and severally, shall indemnify each Indemnified Party for Indemnified Losses
relating to or resulting from:
-11-
(i) any representation or warranty made by or on behalf of an
Originator under or in connection with this Agreement, any Periodic
Report or any other information or report delivered by an Originator
pursuant to the Transaction Documents, which shall have been false or
incorrect in any material respect when made or deemed made;
(ii) the failure by an Originator to comply with any applicable
law, rule or regulation related to any Receivable, or the nonconformity
of any such Receivable with any such applicable law, rule or regulation;
(iii) the failure of an Originator to vest and maintain vested
in Buyer, a perfected ownership or security interest in the Receivables
and the other property conveyed pursuant hereto, free and clear of any
Adverse Claim;
(iv) any commingling of funds to which Buyer is entitled
hereunder with any other funds;
(v) any failure of a Lock-Box Bank to comply with the terms of
the applicable Lock-Box Letter;
(vi) any dispute, claim, offset or defense (other than discharge
in bankruptcy of the Obligor or financial inability of the Obligor to
pay) of the Obligor to the payment of any Receivable, or any other claim
resulting from the sale or lease of goods or the rendering of services
related to such Receivable or the furnishing or failure to furnish any
such goods or services;
(vii) any failure of an Originator to perform its duties or
obligations in accordance with the provisions of this Agreement or any
other Transaction Document to which an Originator is a party; or
(viii) any environmental liability claim, products liability
claim or personal injury or property damage suit or other similar or
related claim or action of whatever sort, arising out of or in
connection with any Receivable or any other suit, claim or action of
whatever sort relating to any of any Originator's obligations under the
Transaction Documents.
Section 7.2. Indemnification Due to Failure to Consummate Purchase. Each
Originator will indemnify Buyer on demand and hold it harmless against all costs
(including, without limitation, breakage costs) and expenses incurred by Buyer
resulting from any failure by such Originator to consummate a purchase after
Buyer has requested a transfer of the applicable Receivables to the Purchasers
under the terms of the Second Tier Agreement.
SECTION 8. MISCELLANEOUS.
Section 8.1. Amendments, Waivers, etc. No amendment of this Agreement or
waiver of any provision hereof or consent to any departure by either party
therefrom shall be effective without the written consent of the party that is
sought to be bound. Any such waiver or consent
-12-
shall be effective only in the specific instance given. No failure or delay on
the part of either party to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law. Each Originator agrees that
the Purchasers may rely upon the terms of this Agreement, and that the terms of
this Agreement may not be amended, nor any material waiver of those terms be
granted, without the consent of the Agent; provided that such Originator and
Buyer may agree to an adjustment of the purchase price for any Receivable
originated by such Originator without the consent of the Agent provided that the
purchase price paid for such Receivable shall be an amount not less than
adequate consideration that represents fair value for such Receivable.
Section 8.2. Assignment of Receivables Purchase Agreement. Each
Originator hereby acknowledges that on the date hereof Buyer has collaterally
assigned for security purposes all of its right, title and interest in, to and
under this Agreement to the Agent for the benefit of the Purchasers pursuant to
the Second Tier Agreement and that the Agent and the Purchasers are third party
beneficiaries hereof. Each Originator hereby further acknowledges that after the
occurrence and during the continuation of a Termination Event all provisions of
this Agreement shall inure to the benefit of the Agent and the Purchasers,
including the enforcement of any provision hereof to the extent set forth in the
Second Tier Agreement, but that neither the Agent nor any Purchaser shall have
any obligations or duties under this Agreement. No purchases shall take place
hereunder at any time that the Agent has exercised its right to enforce Buyer's
rights hereunder pursuant to Section 1.8 of the Second Tier Agreement. Each
Originator hereby further acknowledges that the execution and performance of
this Agreement are conditions precedent for the Agent and the Purchasers to
enter into the Second Tier Agreement and that the agreement of the Agent and
Purchasers to enter into the Second Tier Agreements will directly or indirectly
benefit such Originator and constitutes good and valuable consideration for the
rights and remedies of the Agent and each Purchaser with respect hereto.
Section 8.3. Binding Effect; Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns and shall also, to the extent provided herein, inure to
the benefit of the parties to the Second Tier Agreement. Each Originator
acknowledges that Buyer's rights under this Agreement are being assigned to the
Agent under the Second Tier Agreement and consents to such assignment and to the
exercise of those rights directly by the Agent, to the extent permitted by the
Second Tier Agreement.
Section 8.4. Survival. The rights and remedies with respect to any
breach of any representation and warranty made by an Originator or Buyer
pursuant to Section 4, the provisions of Section 3.2 and the indemnification
provisions of Section 7 shall survive any termination of this Agreement.
Section 8.5. Costs, Expenses and Taxes. In addition to the obligations
of the Originators under Section 7, each party (the Originators being one party
and the Buyer the other party) hereto agrees to pay on demand all costs and
expenses incurred by the other party and its assigns (other than Excluded
Losses) in connection with the enforcement of, or any actual or claimed breach
of,
-13-
this Agreement, including the reasonable fees and expenses of counsel to any of
such Persons incurred in connection with any of the foregoing or in advising
such Persons as to their respective rights and remedies under this Agreement in
connection with any of the foregoing. Each Originator, jointly and severally,
also agrees to pay on demand all stamp and other taxes and fees payable or
determined to be payable in connection with the execution, delivery, filing, and
recording of this Agreement.
Section 8.6. Execution in Counterparts; Integration. This Agreement may
be executed in any number of counterparts and by the different parties in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
Agreement.
Section 8.7. Governing Law; Submission to Jurisdiction. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS (AND
NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS. EACH ORIGINATOR HEREBY
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ILLINOIS AND OF ANY ILLINOIS STATE COURT SITTING IN
CHICAGO FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF, OR RELATING TO,
THE TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY. Each
Originator hereby irrevocably waives, to the fullest extent permitted by law,
any objection it may now or hereafter have to the venue of any such proceeding
and any claim that any such proceeding has been brought in an inconvenient
forum. Nothing in this Section 8.7 shall affect the right of Buyer to bring any
action or proceeding against an Originator or its property in the courts of
other jurisdictions.
Section 8.8. No Proceedings. Each Originator agrees, for the benefit of
the parties to the Second Tier Agreement, that it will not institute against
Buyer, or join any other Person in instituting against Buyer, any proceeding of
a type referred to in the definition of Bankruptcy Event until one year and one
day after no investment, loan or commitment is outstanding under the Second Tier
Agreement.
In addition, all amounts payable by Buyer to an Originator pursuant to
this Agreement shall be payable solely from funds available for that purpose
(after Buyer has satisfied all obligations then due and owing under the Second
Tier Agreement).
Section 8.9. Loans by Buyer to Originators. Buyer may make loans to an
Originator from time to time if so agreed between such parties and to the extent
that Buyer has funds available for that purpose after satisfying its obligations
under this Agreement and the Second Tier Agreement. Any such loan shall be
payable upon demand (and may be prepaid with penalty or premium) and shall bear
interest at such rate as Buyer and such Originator shall from time to time
agree.
Section 8.10. Notices. Unless otherwise specified, all notices and other
communications hereunder shall be in writing (including by telecopier or other
facsimile communication), given to the appropriate Person at its address or
telecopy number set forth in the Second Tier
-14-
Agreement or at such other address or telecopy number as such Person may
specify, and effective when received at the address specified by such Person.
Section 8.11. Entire Agreement. This Agreement constitutes the entire
understanding of the parties thereto concerning the subject matter thereof. Any
previous or contemporaneous agreements, whether written or oral, concerning such
matters are superseded thereby.
-15-
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
XXXXX EXHAUST LLC, as Originator
By
Name:
--------------------------------------
Title:
--------------------------------------
XXXXXXX RIDE CONTROL PRODUCTS, INC., as Originator
By
Name:
--------------------------------------
Title:
--------------------------------------
MAREMONT EXHAUST PRODUCTS, INC., as Originator
By
Name:
--------------------------------------
Title:
--------------------------------------
PUROLATOR PRODUCTS NA, INC., as Originator
By
Name:
--------------------------------------
Title:
--------------------------------------
MERITOR HEAVY VEHICLE SYSTEMS, LLC
By
Name:
--------------------------------------
Title:
--------------------------------------
Signature Page for
Purchase and Sale Agreement
MERITOR LIGHT VEHICLE SYSTEMS, INC.
By
Name:
--------------------------------------
Title:
--------------------------------------
MERITOR HEAVY VEHICLE BRAKING SYSTEMS (USA), INC.
By
Name:
--------------------------------------
Title:
--------------------------------------
EUCLID INDUSTRIES, LLC
By
Name:
--------------------------------------
Title:
--------------------------------------
ARVINMERITOR OE, LLC
By
Name:
--------------------------------------
Title:
--------------------------------------
ARVINMERITOR RECEIVABLES CORPORATION, as Buyer
By
Name:
--------------------------------------
Title:
--------------------------------------
Signature Page for
Purchase and Sale Agreement
The undersigned has caused this Agreement to be executed by its officers
thereunto duly authorized, as of the date first above written solely for the
purposes set forth in Section 3.1 of this Agreement.
ARVINMERITOR, INC.
By
Name:
--------------------------------------
Title:
--------------------------------------
Signature Page for
Purchase and Sale Agreement
