EXHIBIT 10.43
THIRD AMENDMENT TO REVOLVING
CREDIT AND GUARANTY AGREEMENT
THIRD AMENDMENT TO REVOLVING CREDIT AND GUARANTY AGREEMENT,
dated as of December 4, 2002 (this "Amendment"), among Xxxxx Lemmerz
International, Inc. (the "Borrower") and a debtor and debtor-in-possession in a
case pending under Chapter 11 of the Bankruptcy Code, each of the direct and
indirect subsidiaries of the Borrower listed as Guarantors on the signature
pages hereto (collectively, the "Guarantors"), each of which is a debtor and
debtor-in-possession in a case pending under Chapter 11 of the Bankruptcy Code,
the commercial banks, finance companies, insurance companies or other financial
institutions or funds from time to time party thereto (collectively, the
"Lenders") and Canadian Imperial Bank of Commerce, as administrative agent (in
such capacity, the "Administrative Agent") for the Lenders.
WITNESSETH:
WHEREAS, the Borrower, the Guarantors, the Lenders and the
Administrative Agent are parties to that certain Revolving Credit and Guaranty
Agreement, dated as of December 17, 2001 (as amended, restated or otherwise
modified from time to time, the "Credit Agreement");
WHEREAS, the Bankruptcy Court entered the Final Order on
January 28, 2002 approving, among other things, the loans made by the Lenders
described in the Credit Agreement (the "Final Order");
WHEREAS, the Borrower and its Pre-Petition Lenders, certain of
which are also Lenders, have requested, and the Lenders and the Administrative
Agent have, on terms and conditions set forth herein, agreed to certain
modifications of the Credit Agreement; and
WHEREAS, from and after the Effective Date (as hereinafter
defined) of this Amendment, the Credit Agreement shall be amended, subject to
and upon the terms and conditions set forth herein.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and subject to the fulfillment of
the conditions set forth below, the parties hereto agree as follows:
SECTION 1. Definitions. Unless otherwise defined herein, or
the context otherwise requires, capitalized terms used in this Amendment shall
have the meanings ascribed to such terms in the Credit Agreement.
SECTION 2. Amendments to the Credit Agreement. Subject to the
terms and conditions set forth herein, the Credit Agreement is hereby amended as
follows:
(a) The definition of "Measurement Period" set forth in
Section 1.1 of the Credit Agreement is hereby amended by deleting such
definition in its entirety and inserting in lieu thereof the following new
definition:
"MEASUREMENT PERIOD" shall mean, at the time of any determination, the period
commencing on January 1, 2002, and ending on the last date of the most recently
ended fiscal quarter of the Borrower."
(b) The definition of Permitted Liens set forth in Section 1.1
of the Credit Agreement is hereby amended by (i) deleting the word "and"
appearing immediately before the reference to subsection (xi) and (ii) inserting
at the end thereof the following:
"(xi) liens granted by the Bankruptcy Court to secure adequate
protection obligations, if any, permitted to be paid to the
credit providers that are parties to the synthetic lease
financing with Bank of Montreal and BMO Global Solutions, Inc.
in accordance with the terms hereof (the "Junior Adequate
Protection Liens"); provided that such Junior Adequate
Protection Liens are (a) junior to the senior liens
contemplated hereby that are granted by the Interim Order and
Final Order in favor of the Administrative Agent, for the
benefit of itself and the Lenders and in favor of the
Pre-Petition Agent for the benefit of itself and the
Pre-Petition Lenders and (b) junior to the liens granted to
the Pre-Petition Agent, for the benefit of itself and the
Pre-Petition Lenders, pursuant to the Existing Credit
Agreement and the documents executed in connection therewith,
provided, further, that the order of the Bankruptcy Court
authorizing and approving any such Junior Adequate Protection
Liens shall provide that the holders thereof shall not be
permitted to take any action to enforce their rights with
respect to such Junior Adequate Protection Liens as long as
any obligations secured by the liens senior to such Junior
Adequate Protection Liens remain outstanding, and"
(c) The definition of Permitted Liens set forth in Section 1.1
of the Credit Agreement is hereby further amended by (i) deleting "(xi)" in the
fifth line from the bottom of the definition and replacing it with "(xii)" and
(ii) deleting "(x)" in the third line from the bottom of the definition and
replacing it with "(xi)".
(d) Section 7.1(g) of the Credit Agreement is hereby amended
by (i) deleting the word "and" appearing immediately before the reference to
subsection (vi), (ii) deleting the semicolon and the word "or" at the end
thereof and (iii) inserting at the end thereof the following new subsection
(vii):
"and (vii) adequate protection payments to the credit
providers parties to the synthetic lease financings with BMO Global
Capital Solutions, Inc., Dresdner Kleinwort Xxxxxxxxxxx and CBA Leasing
as adequate protection for and to the extent of any diminution in value
of such parties' interest in certain property and equipment used by the
Debtors in an aggregate amount not to exceed $250,000 per month for all
such credit providers to be payable on such terms and subject to such
conditions as are acceptable to the Administrative Agent; provided that
any such adequate protection payments to be made pursuant to this
clause (vii) shall be made solely to the extent permitted by, and in
accordance with, an order of the Bankruptcy Court specifically
approving and authorizing same; and (viii) de minimis adequate
protection payments to certain prepetition secured parties as adequate
protection for and to the extent of any diminution in value of such
vendors' interest in certain equipment used by the Debtors in an
aggregate amount not to exceed $50,000 per month for all such parties
payable on such terms and subject to such conditions as are acceptable
to the Administrative Agent; provided that any such adequate protection
payments to be made pursuant to this clause (viii) shall be made solely
to the extent permitted by, and in a accordance with, an order of the
Bankruptcy Court specifically approving and authorizing same; or"
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SECTION 3. Representations and Warranties. The Borrower and
each of the Guarantors represents and warrants (which representations and
warranties shall survive the execution and delivery hereof) to the
Administrative Agent and Lenders that:
(a) it has the corporate power and authority to execute,
deliver and perform the terms and provisions of this Amendment and the
transactions contemplated hereby and has taken or caused to be taken all
necessary corporate action to authorize the execution, delivery and performance
of this Amendment and the transactions contemplated hereby;
(b) other than the approval of the Bankruptcy Court, no
consent of any person (including, without limitation, shareholders or creditors
of the Borrower or any Guarantor), and no action of, or filing with any
governmental or public body or authority is required to authorize, or is
otherwise required in connection with the execution, delivery and performance of
this Amendment and the other instruments and documents contemplated hereby which
has not been obtained;
(c) each of this Amendment and any other instruments and
documents contemplated hereby has been duly executed and delivered by a duly
authorized officer on behalf of such party, and constitutes a legal, valid and
binding obligation of such party enforceable against such party in accordance
with its terms, subject to bankruptcy, reorganization, insolvency, moratorium
and other similar laws affecting the enforcement of creditors' rights generally
and the exercise of judicial discretion in accordance with general principles of
equity;
(d) the execution, delivery and performance of this Amendment,
and the other instruments and documents contemplated hereby will not violate any
law, statute or regulation, or any order or decree of any court or governmental
instrumentality, or conflict with, or result in the breach of, or constitute a
default under any contractual obligation of such party;
(e) after giving effect to this Amendment, there does not
exist any Default or Event of Default; and
(f) after giving effect to this Amendment, the representations
and warranties contained in the Credit Agreement and in the other Loan Documents
are true and correct in all material respects on and as of the Effective Date as
if such representations and warranties had been made on and as of the Effective
Date (except to the extent such representations and warranties expressly relate
to an earlier date in which case such representations and warranties shall be
true and correct in all material respects as of such earlier date).
SECTION 4. Conditions to Effectiveness. This Amendment shall
become effective on the date (the "Effective Date") upon which the following
conditions have been satisfied in full or waived by the Administrative Agent in
writing:
(a) the Administrative Agent shall have received in form and
substance satisfactory to the Administrative Agent and its counsel, counterparts
of this Amendment executed by the Borrower, the Guarantors, and the Required
Lenders and such other approvals or documents as the Administrative Agent may
reasonably request;
(b) the entry of an order or orders, as applicable, by the
Bankruptcy Court authorizing the amendments to the Credit Agreement described in
Section 2 above;
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(c) all representations and warranties contained in this
Amendment or otherwise made in writing to the Administrative Agent in connection
herewith shall be true and correct in all material respects;
(d) no Default or Event of Default, shall have occurred and be
continuing;
(e) counsel for the Administrative Agent shall have received,
by wire transfer of immediately available funds, the outstanding attorney fees
and disbursements invoiced to the Borrower and required to be paid under Section
11 of this Amendment and/or Sections 14(D) and 21 of the Final Order; and
(f) the Administrative Agent shall have received such other
instruments, documents, opinions and assurances as the Administrative Agent or
its counsel may reasonably request.
SECTION 5. Ratification: Waiver of Defenses; and Release.
(a) The Credit Agreement and the other Loan Documents remain
in full force and effect and are hereby ratified and affirmed. The Borrower and
each Guarantor hereby (i) confirms and agrees that the Borrower is truly and
justly indebted to the Administrative Agent and the Lenders in the aggregate
amount of the Obligations without defense, counterclaim or offset of any kind
whatsoever; and (ii) reaffirms and admits the validity and enforceability of the
Credit Agreement and the other Loan Documents and the Liens in the Collateral
which were granted pursuant to the Loan Documents, the Final Order and
otherwise.
(b) This Amendment shall be limited precisely as written and
shall not be deemed (i) to be a consent granted pursuant to, or a waiver or
modification of, any other term or condition of the Credit Agreement or any of
the instruments or agreements referred to therein or a waiver of any Default or
Event of Default under the Credit Agreement, whether or not known to the
Administrative Agent or the Lenders or (ii) to prejudice any other right or
rights which the Administrative Agent or the Lenders may now have or have in the
future under or in connection with the Credit Agreement or any of the
instruments or agreements referred to therein. Except to the extent hereby
waived or modified, the Credit Agreement and each of the other Loan Documents
shall continue in full force and effect in accordance with the provisions
thereof on the date hereof.
SECTION 6. References. All references to the "Credit
Agreement", "thereunder", "thereof" or words of like import in the Credit
Agreement or any other Loan Document and the other documents and instruments
delivered pursuant to or in connection therewith shall mean and be a reference
to the Credit Agreement as modified hereby and as each may in the future be
amended, restated, supplemented or modified from time to time. This Amendment
shall constitute a Loan Document.
SECTION 7. Counterparts. This Amendment may be executed by the
parties hereto individually or in combination, in one or more counterparts, each
of which shall be an original and all of which, taken together, shall constitute
one and the same agreement. Delivery of an executed counterpart of a signature
page by telecopier shall be effective as delivery of a manually executed
counterpart.
SECTION 8. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Successors and Assigns. The provisions of this
Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
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SECTION 10. Acknowledgement by Guarantors. Each of the
Guarantors hereby acknowledge that it has read this Amendment and consents to
the terms hereof and further confirms and agrees that the Security and Pledge
Agreement to which such Guarantor is a party and all of the Collateral, as the
case may be, described therein do, and shall continue to, secure the payment of
all of the Secured Obligations (in each case, as defined in the Security and
Pledge Agreement).
SECTION 11. Costs and Expenses. The Borrower agrees that its
obligations set forth in Section 10.5 of the Credit Agreement shall extend to
the preparation, execution and delivery of this Amendment (whether or not this
Amendment becomes effective), including, but not limited to, the reasonable fees
and disbursements of Xxxxxxxx Chance US LLP, counsel for the Administrative
Agent.
SECTION 12. Severability. If any provisions of this Amendment
shall be held invalid or unenforceable in whole or in part in any jurisdiction,
such provision shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or enforceability without in any manner affecting the validity
or enforceability of such provision in any other jurisdiction or the remaining
provisions of this Amendment in any jurisdiction.
SECTION 13. Survival. All representations, warranties,
covenants, agreements, undertakings, waivers and releases of the Borrower and
the Guarantors contained herein shall survive the Termination Date and the
indefeasible payment in full in cash of the Obligations.
SECTION 14. Integration. This Amendment represents the entire
agreement of the parties hereto with respect to the amendment of the Credit
Agreement. There are no representations, agreements, arrangements or
understandings, oral or written, between the parties hereto, relating to the
subject matter of this Amendment, which are not fully expressed herein.
SECTION 15. Miscellaneous. The parties hereto shall, at any
time and from time to time following the execution of this Amendment, execute
and deliver all such further instruments and take all such further instruments
and take all such further action as may be reasonably necessary or appropriate
in order to carry out the provisions of this Amendment.
SECTION 16. Headings. Section headings in this Amendment are
included herein for convenience of reference only and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Amendment.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the day and the year first written.
BORROWER:
XXXXX LEMMERZ INTERNATIONAL, INC.
By: _______________________________________
Name: ________________________________
Title: _______________________________
GUARANTORS:
XXXXX LEMMERZ INTERNATIONAL - CALIFORNIA,
INC.
HLI (EUROPE), LTD.
XXXXX LEMMERZ INTERNATIONAL - MEXICO, INC.
XXXXX LEMMERZ INTERNATIONAL - OHIO, INC.
XXXXX LEMMERZ INTERNATIONAL - XXXXXX, INC.
XXXXX LEMMERZ INTERNATIONAL - GEORGIA, INC.
XXXXX LEMMERZ INTERNATIONAL - CMI, INC.
XXXXX LEMMERZ INTERNATIONAL - TEXAS, INC.
XXXXX LEMMERZ INTERNATIONAL - HUNTINGTON,
INC.
XXXXX LEMMERZ INTERNATIONAL - XXXXX, INC.
XXXXX LEMMERZ INTERNATIONAL - KENTUCKY, INC.
XXXXX LEMMERZ INTERNATIONAL - CADILLAC, INC.
HLI - SUMMERFIELD REALTY CORP.
XXXXX LEMMERZ INTERNATIONAL - MONTAGUE, INC.
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
XXXXX LEMMERZ INTERNATIONAL - BRISTOL, INC.
XXXXX LEMMERZ INTERNATIONAL - EQUIPMENT &
ENGINEERING, INC.
XXXXX LEMMERZ INTERNATIONAL - PCA, INC.
XXXXX LEMMERZ INTERNATIONAL - WABASH, INC.
XXXXX LEMMERZ INTERNATIONAL - SOUTHFIELD,
INC.
HLI - VENTURES, INC.
XXXXX LEMMERZ INTERNATIONAL - LAREDO, INC.
XXXXX LEMMERZ INTERNATIONAL -
TRANSPORTATION, INC.
XXXXX LEMMERZ INTERNATIONAL - TECHNICAL
CENTER, INC.
XXXXX LEMMERZ INTERNATIONAL - PETERSBURG,
INC.
HLI REALTY, INC.
HLI NETHERLANDS HOLDINGS, INC.
XXXXX LEMMERZ INTERNATIONAL IMPORT, INC.
CMI - QUAKER ALLOY, INC.
By: _______________________________________
Name: ________________________________
Title: _______________________________
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
ADMINISTRATIVE AGENT:
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent
By: _______________________________________
Name: ________________________________
Title: _______________________________
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
BANK OF AMERICA, N.A., as a Lender
By:
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Name:
Title:
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
BANK OF NEW YORK, as a Lender
By:
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Name:
Title:
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
BAYERISCHE HYPO-UND VEREINSBANK AG, as a
Lender
By:
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Name:
Title:
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
CIBC, INC., as a Lender
By:
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Name:
Title:
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
CITICORP USA, INC., as a Lender
By:
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Name:
Title:
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
FLEET NATIONAL BANK, as a Lender
By:
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Name:
Title:
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
FOOTHILL INCOME TRUST, L.P., as a Lender
By:
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Name:
Title:
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
GENERAL ELECTRIC CAPITAL CORPORATION, as a
Lender
By:
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Name:
Title:
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
GMAC BUSINESS CREDIT, LLC, as a Lender
By:
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Name:
Title:
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
X.X. XXXXXX XXXXX BANK, as a Lender
By:
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Name:
Title:
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
MARINER LDC, as a Lender
By:
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Name:
Title:
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
PNC BANK, N.A., as a Lender
By:
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Name:
Title:
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
SATELLITE SENIOR INCOME FUND, LLC, as a
Lender
By:
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Name:
Title:
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
SUNAMERICA LIFE INSURANCE COMPANY, as a
Lender
By:
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Name:
Title:
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
TORONTO DOMINION (NEW YORK), INC., as a
Lender
By:
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Name:
Title:
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
TRANSAMERICA BUSINESS CAPITAL CORPORATION,
as a Lender
By:
-----------------------------------------
Name:
Title:
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
WHITEHALL BUSINESS CREDIT CORPORATION, as a
Lender
By:
-----------------------------------------
Name:
Title:
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
XXXXXXX CAPITAL LTD., as a Lender
By:
-----------------------------------------
Name:
Title:
THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
