EXHIBIT 10.4
FOURTH AMENDMENT AND LIMITED WAIVER, dated as of November 22,
2002 ("Waiver"), 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 US Borrower has requested that the Lenders waive
compliance by the US Borrower with specific covenants set forth in subsection
7.14 of the Credit Agreement with respect to the Closing of the 2002 Term
Facility and the US Tranche C Term Loans; and
WHEREAS, the Lenders have consented to a limited waiver but
only on the terms and conditions contained herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein, all capitalized terms
used herein shall have the meanings given to them in the Credit Agreement.
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SECTION 2. AMENDMENT.
2.1 Notice of Interest Payment under Senior Subordinated Notes.
Section 8 of the Credit Agreement is hereby amended by adding the following
subsection 8.18:
"8.18 Notice of Subordinated Note Interest Payment. Make all
or any part of the interest payment due on or about December 1, 2002 on the
Senior Subordinated Notes unless the US Borrower gives the Administrative Agent
at least three Business Days prior written notice of its intent to make all or
part of such interest payment."
2.2 Interest Payment on the Senior Subordinated Notes. Section 9
of the Credit Agreement is hereby amended by adding the following paragraph (n):
"(n) The US Borrower shall directly or indirectly pay
any or all of the interest due and payable on or about
December 1, 2002 on the Senior Subordinated Notes and such
payment is made prior to the date on which the US Borrower has
received at least $172,000,000 of Net Cash Proceeds from the
2002 Term Facility and the US Tranche C Term Loans;"
SECTION 3. LIMITED WAIVER. Compliance with subsection 7.14 of the Credit
Agreement with respect to the closing of the 2002 Term Facility and the US
Tranche C Term Loans is hereby waived through December 20, 2002, provided that
if the Administrative Agent shall receive notice in accordance with subsection
8.18 of the Credit Agreement that the US Borrower intends to make any interest
payment under the Subordinated Note Indenture prior to December 20, 2002, such
waiver shall be deemed ineffective as of the date such notice is given if, on or
prior to such date, the US Borrower has not received at least $172,000,000 of
Net Cash Proceeds from the 2002 Term Facility and the US Tranche C Term Loans.
SECTION 4. MISCELLANEOUS.
4.1 Conditions to Effectiveness. This Waiver shall become
effective on the date (the "Waiver Effective Date") on which the following
conditions are satisfied (or waived):
(a) the Administrative Agent shall have received this
Waiver, executed and delivered by a duly authorized officer of each of the US
Borrower, English Bidco, the English Borrower, the Euro Borrower and the
Required Lenders; and
(b) the Administrative Agent and the Lenders shall
have received all fees required to be paid and expenses required to be paid as
of the Waiver Effective Date, including unpaid invoiced legal fees of counsel to
the Administrative Agent and the Lenders;
4.2 Representation and Warranties. After giving effect to the
amendments and waiver contained herein, on the Waiver 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
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respects; provided that each reference in such Section 5 to "this Agreement"
shall be deemed to include this Waiver and the Credit Agreement, as amended and
waived by this Waiver.
4.3 Continuing Effect; No Other Waivers or Amendments. This
Waiver 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.
4.4 No Default. No Default or Event of Default shall have
occurred and be continuing as of the Waiver Effective Date after giving effect
to this Waiver.
4.5 Counterparts. This Waiver 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.
4.6 Payment of Fees and Expenses. 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
Waiver, 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.
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4.7 GOVERNING LAW. THIS WAIVER AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS WAIVER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver
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:
X.X. XXXXXX AUTOMOTIVE CASTINGS, INC.
WAIVER DATED AS OF NOVEMBER 22, 2002
_____________________________________
[LENDER]
By: ________________________________
Name:
Title:
