EXHIBIT 10.1
EXECUTION COPY
AMENDMENT NO. 1 dated as of March 15, 2005 (this
"Amendment"), to the FOURTH AMENDED AND RESTATED CREDIT
AGREEMENT dated as of December 17, 2004 (the "Credit
Agreement"), among TRW AUTOMOTIVE HOLDINGS CORP., a Delaware
corporation ("Holdings"), TRW AUTOMOTIVE INTERMEDIATE HOLDINGS
CORP., a Delaware corporation ("Intermediate Holdings"), TRW
AUTOMOTIVE INC. (f/k/a TRW Automotive Acquisition Corp.), a
Delaware corporation (the "U.S. Borrower"), the FOREIGN
SUBSIDIARY BORROWERS party thereto (together with the U.S.
Borrower, the "Borrowers"), the LENDERS party thereto from
time to time, JPMORGAN CHASE BANK, N.A., as administrative
agent (in such capacity, the "Administrative Agent") and as
collateral agent for the Lenders, BANK OF AMERICA, N.A. and
XXXXXXX XXXXX CREDIT PARTNERS L.P., as co-syndication agents,
and CREDIT SUISSE FIRST BOSTON and THE BANK OF NOVA SCOTIA, as
co-documentation agents.
A. Pursuant to the Credit Agreement, the Lenders have extended
credit to the Borrowers, and have agreed to extend credit to the Borrowers, in
each case pursuant to the terms and subject to the conditions set forth therein.
B. The U.S. Borrower has requested that the Lenders agree to amend
certain provisions of the Credit Agreement pursuant to the terms and subject to
the conditions set forth herein.
C. The undersigned Lenders are willing to amend certain provisions
of the Credit Agreement pursuant to the terms and subject to the conditions set
forth herein.
D. Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Credit Agreement, as amended hereby.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, and subject to the conditions set forth
herein, the parties hereto hereby agree as follows:
SECTION 1. Amendment to Section 1.01. Section 1.01 of the Credit
Agreement is hereby amended as follows:
(a) by amending the definition of "Net Proceeds" to add the words
"or 6.01(p)" after the words "6.01(m)" in clause (b).
(b) by amending the definition of "Permitted Xxxxx Refinancing
Indebtedness" to replace the words "outstanding Incremental Extension of Credit"
in clauses (w) and (x) with the words "Incremental Extensions of Credit
outstanding on the date of issuance of such Indebtedness".
(c) by amending the definition of "Permitted Notes Refinancing
Indebtedness" to (i) add the words "(including in connection with a tender
offer)" after the words "premium thereon" in clause (a), (ii) replace the words
"outstanding Incremental Extension of Credit" in clauses (b) and (c) with the
words "Incremental Extensions of Credit outstanding on the date of issuance of
such Indebtedness", (iii) delete therefrom the words "(d) with respect to any
Refinancing of Senior Subordinated Notes, such Permitted Notes Refinancing
Indebtedness is subordinated in right of payment to the Obligations on terms no
less favorable to the Lenders than those contained in the Senior Subordinated
Notes Documents," (iv) delete from clause (g) thereof the words "or Senior
Subordinated Notes, as applicable" and (v) redesignate clauses "(e)", "(f)", and
"(g)" as clauses "(d)", "(e)", and "(f)", respectively.
(d) by deleting in its entirety the definition of "Public Offering"
and inserting the following definition in the appropriate alphabetical order:
"Equity Offering" shall mean any public or private sale of common
stock of Holdings, other than public offerings with respect to the common stock
of Holdings registered on Form S-8 under the Securities Act (or any successor
form thereto).
(e) by deleting in its entirety the definition of "Public Offering
Net Proceeds" and inserting the following definition in the appropriate
alphabetical order:
"Equity Offering Net Proceeds" shall mean the cash proceeds from
any Equity Offering, net of all fees (including investment banking fees),
discounts, commissions, costs and other expenses, in each case incurred in
connection with such Equity Offering. In connection with the calculation of the
Equity Offering Net Proceeds with respect to any Equity Offering, all fees,
discounts, commissions, costs and expenses shall be allocated among the shares
sold in such Equity Offering on a pro rata basis.
SECTION 2. Amendment to Section 2.10. Section 2.10 of the Credit
Agreement is hereby amended by (a) adding in clause (g)(ii) immediately after
the words "Section 6.01(m)" the words "and any Net Proceeds from the issuance of
Indebtedness permitted by 6.01(p) allocated to prepay Term Borrowings by the
U.S. Borrower pursuant to Section 2.11(c)" and (b) adding in each other
subclause of clause (g) immediately after the words "6.01(m)" the words "or
6.01(p), to the extent applicable".
SECTION 3. Amendment to Section 2.11. Section 2.11 of the Credit
Agreement is hereby amended by replacing clause (c) in its entirety with the
following text:
The U.S. Borrower shall, promptly upon receipt thereof, (i) apply all Net
Proceeds (other than Net Proceeds from the issuance of Indebtedness
permitted by 6.01(p)) to prepay Term Borrowings in accordance with
paragraphs (g) through (i) of Section 2.10 and (ii) in the case of Net
Proceeds from the issuance of Indebtedness permitted by 6.01(p), (A)
allocate such Net Proceeds between Revolving Borrowings and Term
Borrowings as directed by the U.S. Borrower and (B) (1) apply amounts so
allocated to the Revolving Borrowings to prepay Revolving Borrowings (with
no required reduction in the Revolving Credit Commitments) subject to
prior notice in accordance with Section 2.10(i) and (2) apply amounts so
allocated to the Term Borrowings to prepay Term Borrowings in accordance
with paragraphs (g) through (i) of Section 2.10.
SECTION 4. Amendment to Section 6.01. Section 6.01 of the Credit
Agreement is hereby amended by (a) replacing the words "outstanding Incremental
Extensions of Credit" in clause (A) of the proviso to clause (m) with the words
"Incremental Extension of Credit outstanding on the date of issuance of such
Indebtedness", (b) adding the words "or any Incremental Extensions of Credit
outstanding on the date of issuance of such Indebtedness" after the words
"Tranche B Term Loans" in clause (B) of the proviso to clause (m), (c) deleting
the "and" at the end of clause (n), (d) replacing the period at the end of
clause (o) with "; and" and (e) adding the following clause (p):
(p) (i) Indebtedness of the Subsidiaries in an aggregate principal
amount at any time outstanding pursuant to this paragraph (p) not in excess of
$350,000,000, to the extent that the Net Proceeds of such Indebtedness are
applied to prepay Term Loans or Revolving Loans (without a reduction in the
Revolving Credit Commitments) pursuant to Section 2.11(c), provided that (A) the
stated maturity of such Indebtedness is no earlier than 180 days after the
Tranche B Maturity Date or the maturity date of any Incremental Extension of
Credit outstanding on the date of issuance of such Indebtedness, (B) the
weighted average life of such Indebtedness is no shorter than the then-remaining
weighted average life of the Tranche B Term Loans or any Incremental Extension
of Credit outstanding on the date of issuance of such Indebtedness, (C) such
Indebtedness shall not be secured by any collateral and (D) all other terms
(excluding interest rates and redemption premiums) of such Indebtedness shall
not be less favorable to the Lenders in any material respect than those
contained in the Senior Notes (or, if such Indebtedness is subordinated to the
Obligations, the Senior Subordinated Notes) and (ii) Guarantees by Holdings,
Intermediate Holdings and the Subsidiaries of Indebtedness permitted to be
incurred pursuant to clause (i) of this paragraph (p);
SECTION 5. Amendment to Section 6.06. Section 6.06 of the Credit
Agreement is hereby amended by (a) deleting the word "and" at the end of clause
(d), (b) replacing the period at the end of clause (e) with "; and" and (c)
adding the following clause (f):
Holdings may purchase or redeem (and the U.S. Borrower may declare and pay
dividends or make other distributions to Intermediate Holdings, the
proceeds of which are used by Intermediate Holdings to pay dividends or
make other distributions to Holdings, the proceeds of which are used by
Holdings so to purchase or redeem) Equity Interests of Holdings (including
the purchase or redemption of related stock appreciation rights or similar
securities with respect to such Equity Interests) in an aggregate amount
not to exceed (x) $350,000,000 minus (y) the aggregate amount of purchases
and redemptions previously made pursuant to this clause (f), provided that
(A) the Leverage Ratio as of the last day of the most recently ended
fiscal quarter prior to the date of such payment for which financial
statements have been delivered pursuant to Section 5.04 is less than 3.0
to 1.0 and (B) no Default or Event of Default shall have occurred and be
continuing or would result therefrom.
SECTION 6. Amendment to Section 6.08. Section 6.08 of the Credit
Agreement is hereby amended by replacing the words "Public Offering" in clause
(c)(vi) with the words "Equity Offering".
SECTION 7. Amendment to Section 6.09. Section 6.09 of the Credit
Agreement is hereby amended by (a) replacing the words "Public Offering Net
Proceeds from one or more Public Offerings" in clause (b)(i)(C) with the words
"Equity Offering Net Proceeds from one or more Equity Offerings", (b) replacing
the words "Public Offering" in clause (2) to the proviso to clause (b)(i)(C)
with the words "Equity Offering" and (c) replacing the words "Public Offering
Net Proceeds" in clause (b)(i)(D) with the words "Equity Offering Net Proceeds".
SECTION 8. Representations and Warranties. Each of Holdings,
Intermediate Holdings and each Borrower represents and warrants to the
Administrative Agent and to each of the Lenders that:
(a) This Amendment has been duly authorized, executed and delivered
by each of Holdings, Intermediate Holdings and each Borrower and constitutes a
legal, valid and binding obligation of each of Holdings, Intermediate Holdings
and each Borrower, enforceable in accordance with its terms, subject to (i) the
effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent
conveyance or other similar laws affecting creditors' rights generally, (ii)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (iii) implied covenants of
good faith and fair dealing.
(b) Neither the execution, delivery or performance by any of
Holdings, Intermediate Holdings or any Borrower of this Amendment, nor
compliance by any of Holdings, Intermediate Holdings or any Borrower with the
terms and provisions hereof, will (i) violate (A) any provision of law, statute,
rule or regulation, or of the certificate or articles of incorporation or other
constitutive documents or by-laws of Holdings, Intermediate Holdings, any
Borrower or any Subsidiary, (B) any applicable order of any court or any rule,
regulation or order of any Governmental Authority or (C) any provision of any
indenture, certificate of designation for preferred stock, agreement or other
instrument to which Holdings, Intermediate Holdings, any Borrower or any
Subsidiary is a party or by which any of them or any of their property is or may
be bound, (ii) be in conflict with, result in a breach of or constitute (alone
or with notice or lapse of time or
both) a default under, give rise to a right of or result in any cancelation or
acceleration of any right or obligation (including any payment) or to a loss of
a material benefit under any such indenture, certificate of designation for
preferred stock, agreement or other instrument or (iii) result in the creation
or imposition of any Lien upon or with respect to any property or assets now
owned or hereafter acquired by Holdings, Intermediate Holdings, any Borrower or
any Subsidiary, other than the Liens created by the Loan Documents.
(c) The representations and warranties set forth in Article III of
the Credit Agreement are true and correct in all material respects on and as of
the date hereof with the same effect as though made on and as of such 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).
(d) Immediately prior to and after giving effect to this Amendment,
no Default or Event of Default shall have occurred and be continuing.
SECTION 9. Conditions to Effectiveness. This Amendment shall become
effective as of the date first above written when (a) the Administrative Agent
shall have received counterparts of this Amendment that, when taken together,
bear the signatures of Holdings, Intermediate Holdings, each Borrower and the
Required Lenders and (b) to the extent invoiced, all fees and expenses required
to be paid or reimbursed by the U.S. Borrower under or in connection with this
Amendment or the Credit Agreement shall have been paid or reimbursed, as
applicable.
SECTION 10. Credit Agreement. Except as expressly set forth herein,
this Amendment shall not by implication or otherwise limit, impair, constitute a
waiver of, or otherwise affect the rights and remedies of the Lenders, the
Agents, the Issuing Bank, the Borrowers or any other Loan Party under the Credit
Agreement or any other Loan Document, and shall not alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other Loan Document, all of
which are ratified and affirmed in all respects and shall continue in full force
and effect. Nothing herein shall be deemed to entitle the Borrowers to any
future consent to, or waiver, amendment, modification or other change of, any of
the terms, conditions, obligations, covenants or agreements contained in the
Credit Agreement or any other Loan Document in similar or different
circumstances. After the date this Amendment becomes effective, any reference to
the Credit Agreement shall mean the Credit Agreement as modified hereby. This
Amendment shall constitute a "Loan Document" for all purposes of the Credit
Agreement and the other Loan Documents.
SECTION 11. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 12. Counterparts. This Amendment may be executed in two or
more counterparts, each of which shall constitute an original but all of which,
when taken together, shall constitute but one contract. Delivery of an executed
signature page to this Amendment by facsimile transmission shall be effective as
delivery of a manually signed counterpart of this Amendment.
SECTION 13. Expenses. The U.S. Borrower agrees to reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Amendment.
SECTION 14. Headings. The Section headings used herein are for
convenience of reference only, are not part of this Amendment and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and year
first written above.
TRW AUTOMOTIVE HOLDINGS CORP.,
by
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
TRW AUTOMOTIVE INTERMEDIATE
HOLDINGS CORP.,
by
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
TRW AUTOMOTIVE INC.,
by
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
XXXXX INDUSTRIES LIMITED,
by
/s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
TRW SYSTEMS LIMITED,
by
/s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
TRW AUTOMOTIVE GMBH,
by
/s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
TRW DEUTSCHLAND HOLDINGS GMBH,
by
/s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
TRW POLSKA SP. Z O.O.,
by
/s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
TRW BRAKING SYSTEMS POLSKA SP. Z O.O.,
by
/s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
TRW SAFETY SYSTEMS POLAND SP. Z O.O.,
by
/s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
TRW STEERING SYSTEMS POLAND SP. Z O.O.,
by
/s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
JPMORGAN CHASE BANK, N.A.
Individually and as Administrative Agent,
by
/s/
-----------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 1
TO THE TRW AUTOMOTIVE INC. CREDIT
AGREEMENT DATED AS OF MARCH ___,
2005
To Approve the Amendment:
Name of Institution:
_________________________________________
by_______________________________________
Name:
Title:
