EXHIBIT 10.3
EXECUTION COPY
THIRD AMENDMENT, dated as of November 19, 2002 ("Amendment"),
to the AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 15, 1999 (as
amended and waived prior to the date hereof, the "Credit Agreement"), among X.X.
XXXXXX AUTOMOTIVE CASTINGS, INC., a Delaware corporation (the "US Borrower"),
AUTOMOTIVE COMPONENTS INVESTMENTS LIMITED, a private limited company
incorporated under the laws of England and Wales ("English Bidco"), XX XXXXXX UK
LIMITED (f/k/a XXXXXX XXXXX LIMITED), a private limited company incorporated
under the laws of England and Wales (in its capacity as the borrower of Pounds
Sterling under the Credit Agreement, the "English Borrower" and in its capacity
as the borrower of euro under the Credit Agreement, the "Euro Borrower"), the
several banks and other financial institutions from time to time parties thereto
(the "Lenders"), BANK OF AMERICA N.A., as syndication agent for the Lenders (in
such capacity, the "Syndication Agent"), X.X. XXXXXX EUROPE LIMITED, as
administrative agent for the English Lenders (in such capacity, the "English
Agent") and as administrative agent for the Euro Lenders (in such capacity, the
"Euro Agent"), and JPMORGAN CHASE BANK, formerly known as THE CHASE MANHATTAN
BANK, a New York banking corporation ("JPMorgan Chase Bank"), as administrative
agent for the Lenders (in such capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders have
extended term loans and made available revolving credit commitments to the
Borrowers on the terms set forth in the Credit Agreement;
WHEREAS, the Borrowers have requested that the Lenders amend
certain provisions to the Credit Agreement; and
WHEREAS, the parties hereto wish to amend the Credit
Agreement, but only upon the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS.
1.1 Defined Terms. Terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
SECTION 2. AMENDMENTS.
2.1 (a) Subsection 1.1 of the Credit Agreement is hereby
amended by (i) deleting in their entirety the definitions of "Applicable
Margin", "Asset Sale", "Asset Sale Prepayment Percentage", "ECF Prepayment
Percentage", "Minimum Availability", "Scheduled
Revolving Credit Commitment Termination Date", "US Term Loans" and "US Term Loan
Lenders" and (ii) adding the following new defined terms in their proper
alphabetical order:
"Applicable Margin": for each Type of Loan and for purposes of
subsection 2.3, the rate per annum set forth under the relevant column heading
below:
Base Rate Loans
Types Applicable Margin
----- -----------------
US Tranche A Term Loans 3.00%
US Tranche B Term Loans 3.50%
English Term Loans and US Sterling Term Loans 3.00%
Revolving Credit Loans 3.00%
(including Swing Line Loans)
Eurocurrency Loans and B/As
Type Applicable Margin
---- -----------------
US Tranche A Term Loans 4.00%
US Tranche B Term Loans 4.50%
English Term Loans and US Sterling Term Loans 4.00%
Revolving Credit Loans 4.00%
(including Letters of Credit and
Accommodations)
Commitment Fee Applicable Margin
-------------- -----------------
0.75%
"Asset Sale": any sale, transfer or other disposition
(including any sale and leaseback of assets) by the US Borrower or any of its
Subsidiaries of any property of the US Borrower or any such Subsidiary
(including property subject to any Lien under any Loan Document), other than as
permitted pursuant to (w) subsection 8.6(b), (x) subsection 8.6(d) to the extent
Net Cash Proceeds from such sale or transfer does not exceed the Equivalent
Amount of $3,250,000 in any fiscal year and (y) subsections 8.6(e) through (j)
(other than with respect to the licenses or sublicenses of intellectual property
as described in 8.6(f)).
"Asset Sale Prepayment Percentage": 100%.
"ECF Prepayment Percentage": 75%.
"Scheduled Revolving Credit Commitment Termination Date": June
30, 2006 or, if such date is not a Business Day, the Business Day next preceding
such date.
"US Term Loans": the collective reference to the US Tranche A
Term Loans, the US Tranche B Term Loans, the US Tranche C Term Loans and the US
Sterling Term Loans.
"US Term Loan Lenders": the collective reference to the US
Tranche A Term Loan Lenders, the US Tranche B Term Loan Lenders, the US Tranche
C Term Loan Lenders and the US Sterling Term Loan Lenders; provided that, for
purposes of subsection 12.1(b)(x), the US Tranche B Term Loan Lenders and the US
Tranche C Term Loan Lenders shall vote as one tranche with respect to matters
which directly affect the US Tranche B Term Loan Lenders and the US Tranche C
Term Loan Lenders in the same manner.
(b) Subsection 1.1 of the Credit Agreement is hereby amended
by adding the following clause (c) at the end of the definition of "Change of
Control":
"or (c) a change of control (however denominated) shall occur
for purposes of the 2002 Term Facility."
(c) Subsection 1.1 of the Credit Agreement is hereby amended
by adding the following sentence at the end of the definition of "Excess Cash
Flow":
"Notwithstanding the foregoing, Excess Cash Flow for any
fiscal year shall be reduced by an amount equal to the amount that Consolidated
EBITDA is increased in accordance with clause (A)(ix) of the definition of
`Consolidated EBITDA'."
(d) Subsection 1.1 of the Credit Agreement is hereby amended
by adding the following clause (d) at the end of the definition of "Interest
Payment Date":
"and (d) as to any US Tranche C Term Loan, the last day of
each of March, June, September and December."
(e) Additional Definitions. The following definitions shall be
added to subsection 1.1 of the Credit Agreement in proper alphabetical order:
"Third Amendment": the Third Amendment dated as of November
__, 2002 to this Agreement.
"Third Amendment Effective Date": as defined in the Third
Amendment.
"2002 Term Facility": a term loan facility resulting in at
least $100,000,000 of gross cash proceeds to the US Borrower arranged by Credit
Suisse First Boston substantially in accordance with the terms and subject to
the conditions set forth in the term sheet provided to the Administrative Agent
and the Lenders prior to the Third Amendment Effective Date and attached as
Annex A to the Third Amendment and on terms and conditions (including as to
documentation and intercreditor matters) satisfactory to the Administrative
Agent.
"2002 Term Facility Intercreditor Agreement": as defined in
subsection 8.3(p).
"US Tranche C Term Loans": as to the US Borrower, any term
loans made to such Borrower by the US Tranche C Term Loan Lenders pursuant to
subsection 2.5(e) of this Agreement, in an aggregate principal amount of at
least $85,000,000.
"US Tranche C Term Loan Closing Date": the date on which the
US Tranche C Term Loan Lenders provide the US Tranche C Term Loans, as
determined by the US Borrower and the Administrative Agent, which in any event
shall be no later than November 22, 2002.
"US Tranche C Term Loan Lenders": as to the US Borrower, any
Lenders holding outstanding US Tranche C Term Loans.
"US Tranche C Term Loan Maturity Date": October 22, 2006.
(f) Administrative Schedule Definitions. The definition of
"Eurocurrency Base Rate" under the heading "US Borrower: Dollars" in Section III
of the Administrative Schedule is hereby amended by adding the following to the
end of such definition
"; provided that with respect to each day during each
Interest Period pertaining to a US Tranche B Term Loan that is a Eurocurrency
Loan, the Eurocurrency Base Rate shall be at least 2.5% per annum."
2.2 Commitment Fee; Administrative Agent Fees. Subsection 2.3
is hereby amended by adding the following new paragraph (c) at the end of such
subsection:
"(c) The US Borrower agrees to pay to the Administrative Agent
for the account of each US Tranche C Term Lender (i) an anniversary fee equal to
1% of the outstanding US Tranche C Term Loans of such Lender on each annual
anniversary of the US Tranche C Term Loan Closing Date (which fee shall be
payable on the first anniversary of the US Tranche C Term Loan Closing Date and
thereafter payable quarterly in arrears until the US Tranche C Term Loan
Maturity Date) and (ii) an exit fee equal to 5% of (A) any prepayment of the US
Tranche C Term Loans of such Lender and/or (B) the balance of the US Tranche C
Term Loans of such Lender outstanding at the US Tranche C Term Loan Maturity
Date (which fee shall be payable on the date of each such prepayment and the US
Tranche C Term Loan Maturity Date, in the applicable amount as set forth
above)."
2.3 US Tranche B Term Loans and US Tranche C Term Loans. (a)
Subsection 2.5 of the Credit Agreement is hereby amended by adding the following
at the end of subsection 2.5(b)(ii):
"Notwithstanding anything to the contrary herein, all payments
(whether scheduled or by optional prepayment, mandatory prepayment, upon
acceleration or otherwise) of US Tranche B Term Loans made during any calendar
year set forth below shall be made at the redemption prices set forth opposite
such calendar year below:
Calandar Year Redemption Price
------------- ----------------
2003 101%
2004 102%
2005 and thereafter 103%"
(b) Subsection 2.5 of the Credit Agreement is hereby further
amended by adding a new paragraph (e) as follows:
"(e) US Tranche C Term Loans. (i) The US Tranche C Term
Lenders agree to make the US Tranche C Term Loans to the US Borrower in an
aggregate amount of no less than $85,000,000 on the US Tranche C Term Loan
Closing Date.
(ii) The US Tranche C Term Loans shall be due and payable in a
single installment on the US Tranche C Term Loan Maturity Date."
2.4 Procedure for Term Loan Borrowing. Subsection 2.6 of the
Credit Agreement is hereby amended by adding the following new paragraph at the
end thereof:
"Notwithstanding anything to the contrary herein, the US
Borrower shall give the Administrative Agent irrevocable notice by 12:00 noon
New York City time one Business Day prior to the applicable Borrowing Date
requesting that the US Tranche C Term Loan Lenders make the US Tranche C Term
Loans specifying the requested Borrowing Date. Upon receipt of any such notice
from the US Borrower, the Administrative Agent shall promptly notify each US
Tranche C Term Loan Lender thereof. Each US Tranche C Term Loan Lender will make
the amount of its pro rata share of each borrowing available to the
Administrative Agent for the account of the US Borrower at the office of the
Administrative Agent specified in subsection 12.2 prior to 11:00 am, New York
City time, on the Borrowing Date requested by the US Borrower in funds
immediately available to the Administrative Agent. Such borrowing will then be
made available to the US Borrower by the Administrative Agent crediting the
account of the US Borrower on the books of such office with the aggregate of the
amounts made available to the Administrative Agent by the US Tranche C Term Loan
Lenders and in like funds as received by the Administrative Agent."
2.5 Repayment of Loans. Subsection 2.7 of the Credit Agreement
is hereby amended by adding the following clause (a)(vii) after clause (a)(vi)
thereof:
"and (vii) each US Tranche C Term Loan Lender, the then unpaid
principal amount of each US Tranche C Term Loan of such Lender, on the US
Tranche C Term Loan Maturity Date."
2.6 Mandatory Prepayments.
(a) Subsection 2.9 of the Credit Agreement is hereby amended
by inserting the following new subsections (k) and (l) at the end of such
subsection 2.9:
"(k) Upon the incurrence of the Indebtedness by the US
Borrower under subsection 8.2(s) and the borrowing of the US Tranche C Term
Loans in accordance with
Section 2.6 hereof (and notwithstanding paragraph (d) above), the US Borrower
shall use the Net Cash Proceeds thereof (which Net Cash Proceeds shall be at
least $172,000,000) to, (i) first prepay the Revolving Credit Loans then
outstanding (but not permanently reduce the Revolving Credit Commitments
corresponding to such Revolving Credit Loans) on a pro rata basis in an
aggregate amount up to $30,000,000, (ii) then, prepay the US Tranche A Term
Loans, the US Sterling Term Loans and the English Term Loans in full, and (iii)
then, prepay the US Tranche B Term Loans with any remaining Net Cash Proceeds
thereof. Any amounts of the US Tranche B Term Loans required to be prepaid
pursuant to this subsection 2.9(k) shall be applied to reduce installments of
such US Tranche B Term Loans in direct order of maturity.
(l) If on any date after the US Borrower has made the
prepayments required by Section 2.9(k), the excess of the aggregate cash and
Cash Equivalents of the US Borrower and its Subsidiaries (based on an average
for the five days preceding such date) as determined in accordance with GAAP
which are held free of Liens (other than Liens in favor of the Lenders) over the
aggregate amount of any checks written and delivered for payment by the US
Borrower and its Subsidiaries which have not yet cleared, exceeds $15,000,000,
the US Borrower shall prepay the US Revolving Credit Loans (but not permanently
reduce the Revolving Credit Commitments corresponding to such Revolving Credit
Loans) in an amount equal to such excess on such date."
(b) Subsection 2.9(c) of the Credit Agreement is hereby
amended by adding the following sentence at the end of such subsection:
"Notwithstanding anything to the contrary herein, the amount
of Excess Cash Flow required to be paid for such fiscal year (before the
application of the ECF Prepayment Percentage) shall be reduced by the amount of
any redemption premium required to be paid with respect to such prepayment
pursuant to Section 2.5(b)(ii)."
(c) Subsection 2.9(e) of the Credit Agreement is hereby
amended by adding the following sentence at the end of such subsection:
"Notwithstanding anything to the contrary herein, this
subsection 2.9(e) shall not apply to any prepayments made in accordance with
subsection 2.9(k)."
(d) Subsection 2.9(i) of the Credit Agreement is hereby
amended by adding the following sentence at the end of such subsection:
"Notwithstanding anything to the contrary herein, this
subsection 2.9(i) shall not apply to any prepayments made in accordance with
subsection 2.9(k)."
2.7 Minimum Liquidity. Subsection 2.13 is hereby amended by
deleting such subsection in its entirety.
2.8 Interest Rates and Payment Dates. Subsection 4.1 of the
Credit Agreement is hereby amended by (i) adding the following new sentence at
the end of subsection 4.1(b):
"Each US Tranche C Term Loan shall bear interest at a rate per
annum equal to the greater of (i) the Base Rate plus 6% and (ii) 11%."; and
(ii) adding the following new sentence at the end of
subsection 4.1(c):
"Notwithstanding anything to the contrary herein, upon the
occurrence and during the continuance of any Event of Default specified in
subsection 9(a), the US Tranche C Term Loans and any overdue amount hereunder
shall bear interest at a rate per annum which is equal to the greater of (i) the
Base Rate plus 9% and (ii) 14%."
2.9 Pledge of After Acquired Property. Subsection 7.9 of the
Credit Agreement is hereby amended by deleting "$5,000,000" which appears in the
fourth line of such subsection and in clause (iii) of the proviso of such
subsection and substituting "$250,000" in lieu thereof.
2.10 Additional Subsidiaries. Subsection 7.10 of the Credit
Agreement is hereby amended by deleting the word "Material" in each place in
which it appears in such subsection.
2.11 Use of Proceeds. Subsection 7.12 of the Credit Agreement
is hereby amended by adding the following sentence at the end of such
subsection:
"Use the US Tranche C Term Loans to prepay the US Tranche A
Term Loans, the US Sterling Term Loans, the English Term Loans and the US
Tranche B Term Loans on the US Tranche C Term Loan Closing Date to the extent
required by Section 2.9(k) and to pay fees and expenses related to the US
Tranche C Term Loans and the Third Amendment."
2.12 Closing of 2002 Term Facility and US Tranche C Term
Loans. Section 7 of the Credit Agreement is hereby amended by adding the
following subsection 7.14:
"Tranche C Term Loans. Ensure that the closing of the 2002
Term Facility and the US Tranche C Term Loans occurs no later than November 22,
2002 with Net Cash Proceeds to the US Borrower of at least $172,000,000."
2.13 Interest Coverage Ratio. Subsection 8.1(a) of the Credit
Agreement is hereby amended by deleting the columns captioned "Period" and
"Ratio" and substituting therefor the following:
Period Ratio
------ -----
October 1, 2002 through December 31, 2003 1.60 to 1.00
January 1, 2004 through December 31, 2004 1.65 to 1.00
January 1, 2005 through June 30, 2005 1.70 to 1.00
July 1, 2005 through September 30, 2005 1.80 to 1.00
October 1, 2005 and thereafter 1.85 to 1.00
2.14 Leverage Ratio. Subsection 8.1(b) of the Credit Agreement
is hereby amended by deleting the columns captioned "Fiscal Quarter" and "Ratio"
and substituting therefor the following:
Fiscal Quarter Ratio
-------------- -----
October 1, 2002 through June 30, 2003 6.00 to 1.00
July 1, 2003 through December 31, 2003 6.25 to 1.00
January 1, 2004 through September 30, 2004 6.00 to 1.00
October 1, 2004 through December 31, 2004 5.75 to 1.00
January 1, 2005 through September 30, 2005 5.50 to 1.00
October 1, 2005 and thereafter 5.25 to 1.00
2.15 Senior Debt Ratio. Subsection 8.1(c) of the Credit
Agreement is hereby amended by deleting the columns captioned "Fiscal Quarter"
and "Ratio" and substituting therefor the following:
Fiscal Quarter Ratio
-------------- -----
October 1, 2002 through December 31, 2004 2.85 to 1.00
January 1, 2005 and thereafter 2.60 to 1.00
2.16 Minimum Daily Liquidity. Subsection 8.1(d) is hereby
deleted in its entirety.
2.17 Limitation on Indebtedness. Subsection 8.2 of the Credit
Agreement is hereby further amended by (i) deleting the "and" at the end of
subsection (q) thereof; (ii) deleting the period at the end of subsection (r)
thereof, substituting a semi-colon therefor, and inserting "and" at the end
thereof; and (iii) adding the following new subsection (s) at the end thereof:
"(s) Indebtedness of the US Borrower incurred under
the 2002 Term Facility; provided that the financial institutions providing such
Indebtedness shall enter into the 2002 Term Facility Intercreditor Agreement."
2.18 Limitation on Liens. Subsection 8.3 of the Credit
Agreement is hereby amended by (i) deleting subsection (n) thereof in its
entirety and substituting therefor the phrase "Intentionally Deleted."; (ii)
deleting the period at the end of subsection (o) thereof, substituting a
semi-colon therefor, and inserting "and" at the end thereof; and (iii) adding
the following new subsection (p) at the end thereof:
"(p) Liens on property of the Credit Parties
organized in the United States (to the extent such property constitutes
Collateral (as defined in the Guarantee and Collateral Agreement) securing
Indebtedness permitted by subsection 8.2(s), which Liens shall be granted
substantially in accordance with the terms and subject to the conditions set
forth in the term sheet provided to the Administrative Agent and the Lenders
prior to the Third Amendment
Effective Date and attached as Annex A to the Third Amendment; provided that the
financial institutions providing such Indebtedness shall enter into an
intercreditor agreement (the "2002 Term Facility Intercreditor Agreement") with
the Collateral Agent, on behalf of the Lenders, in form and substance
satisfactory to the Collateral Agent and the Syndication Agent."
2.19 Limitation on Guarantee Obligations. Subsection 8.4 of
the Credit Agreement is hereby amended by (i) deleting the "and" at the end of
subsection (k) thereof; (ii) deleting the period at the end of subsection (l)
thereof, substituting a semi-colon therefor, and inserting "and" at the end
thereof; and (iii) adding the following new subsection (m) at the end thereof:
"(m) guarantees of the 2002 Term Facility by the
Domestic Subsidiaries of the US Borrower that provide guarantees pursuant to the
Guarantee and Collateral Agreement; provided that the financial institutions
parties to the 2002 Term Facility shall enter into the 2002 Term Facility
Intercreditor Agreement."
2.20 Limitation on Restricted Payments. Subsection 8.7(a)(ii)
of the Credit Agreement is hereby amended by deleting the number "$13,000,000"
that appears therein and inserting the number "$4,500,000" in lieu thereof.
2.21 Restrictions Affecting Subsidiaries. Subsection 8.14 of
the Credit Agreement is hereby amended by (i) deleting the "and" at the end of
clause (a)(ii) thereof and substituting a comma therefor, and (ii) adding the
following new clause (a)(iv) at the end of clause (a)(iii) thereof:
"and (iv) the 2002 Term Facility"
2.22 2002 Term Facility. Section 8 of the Credit Agreement is
hereby amended by adding the following new subsection 8.18:
"8.18 2002 Term Facility. (a) Make any optional or voluntary
payment, prepayment, purchase, redemption or defeasance on or in respect of the
Indebtedness or other obligations under the 2002 Term Facility or (b) amend,
supplement or otherwise modify any of the provisions of the 2002 Term Facility
or any document entered into in connection therewith except for amendments,
supplements or waivers not adverse to the Lenders as set forth in the 2002 Term
Facility Intercreditor Agreement."
2.23 Events of Default. (a) Subsection 9(c) of the Credit
Agreement is hereby amended by adding "or subsection 7.14" at the end of clause
(i) therein.
(b) Subsection 9(l) of the Credit Agreement is hereby amended
by adding the following immediately before the semi-colon at the end thereof:
"or the intercreditor provisions of the 2002 Term Loan
Facility or the 2002 Term Loan Intercreditor Agreement shall cease, for any
reason, to be in full force and effect or enforceable in accordance with their
terms or the holders of the Indebtedness under the 2002
Term Loan Facility shall assert that such provisions cease to be in full force
and effect or enforceable in accordance with their terms;"
(c) Section 9 of the Credit Agreement is hereby amended by
adding "or" at the end of subsection 9(l) and adding the following subsection
9(m):
"(m) The US Borrower or any of its Subsidiaries shall make any
payment, prepayment, purchase, redemption or defeasance on or in respect of
Indebtedness or other obligations under the 2002 Term Facility except (i)
mandatory payments of interest, fees and expenses required by the terms of the
agreement governing such Indebtedness and (ii) payments made to pay, purchase
and/or redeem Indebtedness under the 2002 Term Facility upon the occurrence of a
Change of Control thereunder as long as such payment, purchase or redemption is
not required to be made prior to the date which is 30 days after the occurrence
of such Change of Control, in each case to the extent permitted under the
intercreditor provisions of the 2002 Term Facility Intercreditor Agreement;
2.24 Successors and Assigns; Participations and Assignments.
Subsection 12.6(c) of the Credit Agreement is hereby amended by deleting the
number "$2,500,000" that appears twice in clause (x) thereof and inserting the
number "$1,000,000" in each case in lieu thereof.
SECTION 3. MISCELLANEOUS.
3.1 Conditions to Effectiveness. (a) This Amendment (other
than those amendments specified in Section 3.1(b) and 3.1(c) below) shall become
effective on the date (the "Third Amendment Effective Date") on which the
following conditions are satisfied (or waived):
(i) the Administrative Agent shall have received this
Amendment, executed and delivered by a duly authorized officer of each
of the US Borrower, English Bidco, the English Borrower, the Euro
Borrower, the Subsidiaries parties hereto, the Required Lenders and any
other requisite Lenders under the Credit Agreement;
(ii) the Administrative Agent and the Lenders shall have
received all fees required to be paid and expenses required to be paid
as of the Third Amendment Effective Date, including unpaid invoiced
legal fees of counsel to the Administrative Agent and the Lenders;
(iii) the Administrative Agent shall have received an executed
amendment to the Guarantee and Collateral Agreement whereby (A) the
Grantors party thereto agree to grant a security interest in (1) each
of such Grantor's Deposit Accounts (as defined in the Uniform
Commercial Code of any applicable jurisdiction) to the Collateral
Agent, together with a schedule identifying the location and account
number of each such Deposit Account and (2) any of such Grantor's
assets which would, as of the Third Amendment Effective Date,
constitute Collateral under subsection 7.9 and (B) additional
Subsidiaries of the Borrowers become party to such Guarantee and
Collateral Agreement as required by subsection 7.10 of the Credit
Agreement, as amended by this Amendment;
(iv) the Administrative Agent shall have received the executed
legal opinion of Xxxxxxxx & Xxxxx, counsel to the US Borrower dated the
date hereof in form and substance satisfactory to the Administrative
Agent and updated schedules to the Guarantee and Collateral Agreement;
and
(v) the Administrative Agent shall have received a certificate
of the chief financial officer of the US Borrower setting forth in
reasonable detail calculations supporting the ability of the US
Borrower under the Senior Subordinated Note Indenture to incur
Indebtedness under the Credit Agreement after giving effect to this
Amendment (including the amendments described in Section 3.1(b) below)
and assuming that $85,000,000 of the US Tranche C Term Loans are
borrowed.
(b) The amendments herein which permit the US Tranche C Term
Loans and the 2002 Term Facility and the amendments in Sections 2.13 through
2.15 herein shall become effective on the date on which the following conditions
are satisfied (which date shall be no later than November 22, 2002):
(i) each of the conditions set forth in the term sheet for the
US Tranche C Term Loans previously delivered to the Administrative Agent shall
have been met in all material respects, the Tranche C Term Loan Lenders shall
have executed a counterpart to this Amendment, delivered any necessary
administrative questionnaires to the Administrative Agent and become parties to
the Credit Agreement and the US Borrower shall have received gross cash proceeds
of at least $85,000,000 therefrom and shall have applied the Net Cash Proceeds
thereof in accordance with the terms of this Amendment; and
(ii) the 2002 Term Facility shall have closed and the US
Borrower shall have received gross cash proceeds of at least $100,000,000
therefrom and shall have applied the Net Cash Proceeds thereof in accordance
with the terms of this Amendment.
(c) The amendment in Section 2.1 with respect to the
definition of "Scheduled Revolving Credit Commitment Termination Date" shall
become effective on the date on which the Administrative Agent shall have
received this Amendment executed and delivered by a duly authorized officer of
each of the Revolving Credit Lenders.
3.2 Representation and Warranties. After giving effect to the
waivers and amendments contained herein, on the Third Amendment Effective Date,
each of the US Borrower, English Bidco, the English Borrower and the Euro
Borrower hereby confirms that the representations and warranties set forth in
Section 5 of the Credit Agreement are true and correct in all material respects;
provided that each reference in such Section 5 to "this Agreement" shall be
deemed to include this Amendment and the Credit Agreement, as amended and waived
by this Amendment.
3.3 Continuing Effect; No Other Waivers or Amendments. (a)
This Amendment shall not constitute an amendment or waiver of or consent to any
provision of the Credit Agreement and the other Loan Documents not expressly
referred to herein and shall not be construed as an amendment, waiver or consent
to any action on the part of the Borrowers that
would require an amendment, waiver or consent of the Administrative Agent or the
Lenders except as expressly stated herein. Except as expressly amended hereby,
the provisions of the Credit Agreement and the other Loan Documents are and
shall remain in full force and effect in accordance with their terms.
(b) The Lenders hereby authorize the Administrative Agent to
execute and deliver on their behalf an intercreditor agreement satisfactory to
the Administrative Agent as the intercreditor agreement referred to in the term
sheet attached as Annex A hereto on behalf of each of the Lenders.
3.4 No Default. No Default or Event of Default shall have
occurred and be continuing as of the Third Amendment Effective Date after giving
effect to this Amendment.
3.5 Counterparts. This Amendment may be executed in any number
of separate counterparts by the parties hereto (including by telecopy), each of
which counterparts when so executed shall be an original, but all the
counterparts shall together constitute one and the same instrument.
3.6 Payment of Fees and Expenses. (a) The US Borrower agrees
to pay or reimburse the Administrative Agent for all of its reasonable
out-of-pocket costs and reasonable expenses incurred in connection with this
Amendment, any other documents prepared in connection herewith and the
transactions contemplated hereby, including, without limitation, the reasonable
fees and disbursements of counsel to the Administrative Agent. The US Borrower
agrees to the retention of FTI Xxxxxxxx & Xxxxx and agrees to pay or reimburse
the Administrative Agent for the reasonable fees, charges and disbursements,
including any retainer fee, of FTI Xxxxxxxx & Xxxxx, subject to the
Administrative Agent's approval of such fees.
(b) The US Borrower agrees to pay an amendment fee payable to
every US Tranche B Term Loan Lender and Revolving Credit Lender who approves
this Amendment prior to the Third Amendment Effective Date in an aggregate
amount equal to 0.25% of the sum of the Commitments and Term Loans of such
Lender (after giving effect to the prepayments contemplated by Section 2.9(k) of
the Credit Agreement). Such amendment fees shall be payable on the closing of
the 2002 Term Facility and shall be calculated on the Commitments and the Term
Loans of such Lenders after giving effect to any of the prepayments made on such
date.
3.7 Additional Agreement with respect to US Tranche C Term
Loan Lenders. Each US Tranche C Term Loan Lender will have the rights and
obligations of a Lender under the Credit Agreement and the other Loan Documents
(including, without limitation, pursuant to subsection 12.6 of Credit
Agreement).
3.8 Consent. The Lenders hereby acknowledge that certain
provisions of this Amendment require that the Borrowers cause (i) certain
additional Subsidiaries to execute the Guarantee and Collateral Agreement and
grant to the Administrative Agent, for the ratable benefit of the Lenders, a
security interest in certain additional Collateral and (ii) the existing
Grantors to grant to the Administrative Agent, for the ratable benefit of the
Lenders, a security
interest in certain additional Collateral. The Lenders hereby agree that the
Borrowers and such Subsidiaries shall have 30 days from the Third Amendment
Effective Date to take all actions necessary to create valid perfected security
interests in such additional Collateral. The Borrowers and such Subsidiaries
shall use commercially reasonable efforts to duly execute and deliver a control
agreement with respect to each Deposit Account for which a control agreement is
required under the Guarantee and Collateral Agreement of such Borrower or
Subsidiary and in any event, shall duly execute and deliver such control
agreements no later than the date that is 30 days after the Third Amendment
Effective Date.
3.9 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
3.10 Agreement. The parties hereto agree not to consent to a
waiver that would have the effect of waiving an existing Default or Event of
Default in order to permit a borrowing of Revolving Credit Loans or issuing of a
Letter of Credit unless the Revolving Credit Lenders the Revolving Credit
Commitment Percentages of which aggregate at least a majority of the Revolving
Credit Commitments consent to such waiver.
3.11 Acknowledgment of Third Amendment. Each of the
undersigned Subsidiaries of the US Borrower hereby acknowledges and agrees to
the Third Amendment, and further acknowledges and agrees that the Obligations
under the Credit Agreement, as amended by the Third Amendment, and the other
Loan Documents shall include the US Tranche C Term Loans and that such
Obligations under the Loan Documents remain in full force and effect as of the
date hereof. Each Credit Party hereby agrees that all security interests and
Liens securing the Obligations remain in full force and effect as security for
the Obligations, as they may be increased and modified in connection with the
Third Amendment. Each Credit Party hereby (a) confirms and agrees that its
guarantee under the Loan Documents is, and shall continue to be, in full force
and effect, is hereby confirmed and ratified in all respects and extends to
include the Obligations, as they may be modified and increased in connection
with the Third Amendment; (b) confirms and acknowledges that it is and remains
validly and justly indebted to the Administrative Agent and the Lenders for the
payment of all of the obligations which it has guaranteed (including the
Obligations as they may be modified and increased in connection with the Third
Amendment), without offset, defense, cause of action or counterclaim of any kind
or nature whatsoever; and (c) reaffirms and admits the validity and
enforceability of the Credit Agreement, as amended by the Third Amendment, and
the Loan Documents to which it is a party and Liens in the Collateral which were
granted by it pursuant to any of the Loan Documents or otherwise.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
BORROWERS
X.X. XXXXXX AUTOMOTIVE CASTINGS, INC.,
as US Borrower
By: ________________________________
Name:
Title:
AUTOMOTIVE COMPONENTS INVESTMENTS
LIMITED, as English Bidco
By: ________________________________
Name:
Title:
XX XXXXXX UK LIMITED, as English Borrower
and Euro Borrower
By: ________________________________
Name:
Title:
AGENTS
JPMORGAN CHASE BANK, as Administrative
Agent and Collateral Agent and as a Lender
By: ________________________________
Name:
Title:
X.X. XXXXXX EUROPE LIMITED, as English
Agent and Euro Agent
By: ________________________________
Name:
Title:
BANK OF AMERICA N.A., as Syndication Agent
and as a Lender
By: ________________________________
Name:
Title:
ADDITIONAL CREDIT PARTIES
X.X. XXXXXX CORPORATION, as a Subsidiary
Guarantor and a Grantor
By: ________________________________
Name:
Title:
FRENCH HOLDINGS, INC., as a Subsidiary
Guarantor and a Grantor
By: ________________________________
Name:
Title:
ALLOTECH INTERNATIONAL, INC., as a
Subsidiary Guarantor and a Grantor
By: ________________________________
Name:
Title:
XXXXXX METAL PRODUCTS CORPORATION,
as a Subsidiary Guarantor and a Grantor
By: ________________________________
Name:
Title:
XXXXXX METAL FINANCING CORPORATION,
as a Subsidiary Guarantor and a Grantor
By: ________________________________
Name:
Title:
SHORE LINE INDUSTRIES, INC.,
as a Subsidiary Guarantor and a Grantor
By: ________________________________
Name:
Title:
X.X. XXXXXX AUTOMOTIVE CASTINGS, INC.
THIRD AMENDMENT DATED AS OF
NOVEMBER ____, 2002
____________________________________
[LENDER]
By: ________________________________
Name:
Title:
