SECOND AMENDMENT
EXHIBIT 10.22
SECOND AMENDMENT
THIS SECOND AMENDMENT (this “Amendment”), is dated February ___, 2007, and relates to
that certain (a) Receivables Financing Agreement, dated as of May 30, 2006 (as amended, restated,
supplemented or otherwise modified from time to time, the “Financing Agreement”), among
Xxxxx Funding II, Inc., a Delaware corporation (“Hayes II”), the financial institutions
from time to time party thereto (each a “Lender” and collectively, the “Lenders”),
Citicorp USA, Inc., a Delaware corporation (“CUSA”), as program agent (the “Program
Agent”) for the Lenders and HLI Operating Company, Inc. as “Servicer” (“HLIOC”), (b)
Secondary Purchase Agreement, dated as of May 30, 2006 (as amended, restated, supplemented or
otherwise modified from time to time, the “Secondary Purchase Agreement”), among Hayes II
and Xxxxx Funding I, LLC (“Xxxxx I”), and (c) Originator Purchase Agreement, dated as of
May 30, 2006 (as amended, restated, supplemented or otherwise modified from time to time, the
“Originator Purchase Agreement”), among the persons listed on Schedule 1 thereto as
“Originators” and Xxxxx I, and is hereby made by Xxxxx I, Hayes II, the Program Agent, the Lenders
and the Originators (as defined immediately prior to giving effect to this Amendment). Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to them in the
Financing Agreement, or if not defined therein, in the Originator Purchase Agreement, or if not
defined therein, in the Secondary Purchase Agreement, in each case, as modified hereby.
W I T N E S S E T H:
WHEREAS, HLIOC has advised Xxxxx I, Xxxxx XX and the Program Agent that its subsidiary, HLI
Suspension Holding Company, Inc. (“Suspension”), has agreed to sell all of the issued and
outstanding shares of capital stock of each of Xxxxx Lemmerz International – Bristol, Inc.
(“Bristol”) and Xxxxx Lemmerz International – Montague, Inc. (“Montague”) pursuant to that certain
Stock Purchase Agreement, dated February 1, 2007, between Diversified Machine, Inc., HLI Operating
Company, Inc. and HLI Suspension Holding Company, Inc. (the transactions relating thereto, the
“Sale Transaction”);
WHEREAS, each of Bristol and Montague has requested that, in connection with the consummation
of the Sale Transaction, that the Program Agent, the Lenders, Hayes II and Xxxxx I consent to the
removal of each of Bristol and Montague as Originators pursuant to Section 2.09 of the Originator
Purchase Agreement and the definition of “Originator” in the Financing Agreement (the
“Removal”);
In connection with the Removals and Sale Transaction, Bristol, Montague and Xxxxx I have
requested that, following the consummation of the Sale Transaction, Hayes II reconvey, and release
all security interests in, all Receivable Assets sold, or purported to be sold, by Bristol and
Montague to Xxxxx I and subsequently by Xxxxx I to Hayes II (the “Receivable Assets”; such
transaction, the “Reconveyance”), and Hayes II has requested that Program Agent and the
Lenders, release all security interests in the Receivable Assets.
WHEREAS, the Program Agent, the Lenders, Xxxxx I, Xxxxx XX, and the Originators are
willing to grant the requested consent on the terms and conditions set forth herein;
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NOW, THEREFORE, in consideration of the foregoing premises, the parties hereto agree as
follows:
1. Consent, Amendments and Reconveyance As of Effective Date. As of the “Effective
Date” (as defined in Section 3 below):
(a) The Program Agent, the Lenders, Xxxxx I, Xxxxx XX and the Originators hereby
consent to the Removal following the consummation of the Sale Transaction.
(b) Each of Schedule 1 and Exhibit C to the Originator Purchase Agreement shall be
amended and restated by such schedules and exhibits attached as Exhibit A hereto to
reflect the Removal.
(c) Schedule 1.01-4 of the Financing Agreement shall be amended by deleting “Xxxxx
Lemmerz International – Bristol, Inc.” and “Xxxxx Lemmerz International – Montague, Inc.”
under the reference to “Originators” thereon.
(d) Each Weekly Report delivered by HLIOC under the Financing Agreement shall detail
the collections received by Hayes II, HLIOC, or Xxxxx I from Receivable Assets during the
related calendar week and shall report as to the timing of segregation and disbursement of
such collections; it being agreed and understood that pursuant to the definition of “Weekly
Report”, such report is to include additional information requested by Program Agent from
time to time, and that pursuant to this Amendment such additional information is hereby
requested.
(e) On each Payment Date, HLIOC shall provide a written report to Program Agent (i)
certifying that no collections from Receivable Assets have been deposited in the Facility
Account and (ii) detailing any collections received from Receivable Assets since the date
last reported to the Program Agent and reporting as to the timing of segregation and
disbursement of such collections; it being agreed and understood that pursuant to Section
6.02(g)(iv) of the Financing Agreement, Program Agent has the right to so request such
information.
(f) HLIOC agrees that it will, on the Effective Date, cause each of Bristol and
Montague to send written notice to each Obligor of Receivable Assets to remit payment to a
deposit account other than a Deposit Account (and a lockbox other than a Lockbox) and a
Person other than HLIOC, Hayes II, and Xxxxx I. Should notwithstanding such instructions
any collections from Receivable Assets be remitted to HLIOC, Hayes II, Xxxxx I, any Deposit
Account or any Lockbox, HLIOC shall promptly (and in any event within one Business Day)
segregate such collections from the Collections and disburse such collections from such
Deposit Account or Lockbox or otherwise remit such collections so received as directed by
Bristol and/or Montague, as applicable.
(g) The Lenders authorize the Program Agent to release, and the Program Agent, on
behalf of the Lenders, hereby releases all security interests with respect to, and Hayes II
hereby accepts and receives, all of the Program Agent’s right,
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title and interest in and to the Collateral arising out of, or relating to, Receivables
originated by Bristol and Montague (the “Reconveyed Property”). As a condition to
the foregoing conveyance of the Reconveyed Property, (a) Hayes II shall have delivered to
the Program Agent on the Effective Date a Daily Report giving pro forma effect to such
conveyance, and (b) Hayes II shall have paid to the Program Agent, for the benefit of the
Lenders, in immediately available funds, an amount equal to the amount, if any, by which the
Facility Principal is greater than the Borrowing Base, in each case as determined after
giving effect to such reconveyance, which amount shall have been paid in consideration for
such transfers and assignments. On or after the Effective Date, the Program Agent agrees to
authorize Bristol and Montague to record and file termination statements with respect to
financing statements filed against Bristol and Montague to reflect the foregoing
reconveyance.
(h) As of the Effective Date, each of Bristol and Montague are released and forever
discharged from and against any and all claims, obligations and/or liabilities arising under
or related to the Originator Purchase Agreement and other Transaction Documents.
2. Representations and Warranties. (a) As of the Effective Date, Originators (as
defined immediately following the Effective Date), hereby represent and warrant to Xxxxx I, (b) as
of the Effective Date, Originators (as defined as of the Effective Date), hereby represent and
warrant to Xxxxx I, and (c) as of the Effective Date, Xxxxx I hereby represents and warrants to
Hayes II, and Hayes II and HLIOC each represent and warrant to Program Agent (for the benefit of
itself and the Lenders) that (i) all of the representations and warranties of such Person in the
Transaction Documents are true and correct in all respects on and as of such date as though made to
each such Person on and as of such date (other than representations and warranties which expressly
speak as of a different date, which representations shall be made only on such date), (ii) each of
the recitals accurately describes the transactions described therein in all respects, and (iii) as
of such date, no Event of Termination, Incipient Event of Termination, or Servicer Default has
occurred and is continuing.
3. Effective Date. The “Effective Date” shall occur upon the satisfaction of
the following conditions precedent:
(a) The Program Agent shall have received counterparts hereof executed by each Person
for which a signature block is attached hereto.
(b) Each of the representations and warranties contained in this Amendment which speaks
as of the Effective Date shall be true and correct in all respects on and as of the
Effective Date.
(c) The Program Agent, Bristol, Montague and CNAI, in its capacity as administrative
agent under the Credit Agreement, shall have executed and delivered signature pages to an
agreement removing Bristol and Montague as parties to the Intercreditor Agreement, which
agreement shall be in form and substance satisfactory to the Program Agent.
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(d) The Program Agent shall have received an executed reconveyance agreements among
Xxxxx I, Xxxxx XX, HLIOC and Bristol and among Xxxxx I, Hayes II, HLIOC and Montague which
shall be in form and substance satisfactory to the Program Agent.
(e) The Sale Transaction shall have been consummated.
4. Reference to and Effect on the Loan Documents.
(a) As applicable, on and after the Effective Date, each reference in the Financing
Agreement and Originator Purchase Agreement to “this Agreement”, “hereunder”, “hereof” or
words of like import, and each reference in the other Transaction Documents to the Financing
Agreement and Originator Purchase Agreement, shall mean and be a reference to the Financing
Agreement and Originator Purchase Agreement as modified hereby.
(b) Except as specifically amended or consented to above, all of the terms of the
Financing Agreement, Originator Purchase Agreement and all other Transaction Documents
remain unchanged and in full force and effect.
(c) Except as provided in Section 1(h), the execution, delivery and effectiveness of
this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or
of Program Agent, Xxxxx I or Xxxxx XX under any of the Transaction Documents, nor constitute
an amendment, other than as set forth herein, or waiver of any provision of any of the
Transaction Documents, nor obligate any Lender or Program Agent, Xxxxx I or Hayes II to
agree to similar consents in the future.
(d) This Amendment shall constitute a Transaction Document and any failure to comply
with Section 1(g) hereof shall constitute an Event of Termination under the
Financing Agreement notwithstanding any grace period set forth in Section 7.01(d) of the
Financing Agreement.
5. Costs and Expenses. Hayes II agrees to pay upon demand in accordance with the
terms of Section 10.04(a)(viii) of the Financing Agreement all reasonable costs and expenses of the
Program Agent in connection with the preparation, reproduction, negotiation, execution and delivery
of this Amendment, including, without limitation, the reasonable fees, expenses and disbursements
of Sidley Austin LLP, counsel for the Program Agent with respect to any of the foregoing.
6. Miscellaneous. The headings herein are for convenience of reference only and shall
not alter or otherwise affect the meaning hereof.
7. Counterparts. This Amendment may be executed in any number of counterparts and by
the different parties hereto in separate counterparts, each of which when so executed and delivered
by facsimile shall be an original, but all of which shall together constitute one and the same
instrument.
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8. GOVERNING LAW. THIS AMENDMENT SHALL, IN ACCORDANCE WITH SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
* * *
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IN WITNESS WHEREOF, Xxxxx I, Xxxxx XX, HLIOC, the Program Agent, the Lenders, Bristol,
Montague and the Originators have caused this Amendment to be executed by their respective officers
thereunto duly authorized as of the date first above written.
| XXXXX FUNDING II, INC. | ||||||
| By: | ||||||
| Xxxx Xxxxxxxx Treasurer |
||||||
| XXXXX FUNDING I, LLC | ||||||
| By: | ||||||
| Xxxx Xxxxxxxx Treasurer |
||||||
| HLI OPERATING COMPANY, INC. | ||||||
| By: | ||||||
| Xxxx Xxxxxxxx Treasurer |
||||||
Signature Page to Second Amendment
| CITICORP USA, INC., as Program Agent |
||||||
| By: | ||||||
| Xxxxx X. Xxxxxxx Vice President |
||||||
Signature Page to Second Amendment
| CITICORP USA, INC., as Lender |
||||||
| By: | ||||||
| Xxxxx X. Xxxxxxx Vice President |
||||||
Signature Page to Second Amendment
| BANK OF AMERICA, N.A., as Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
Signature Page to Second Amendment
| THE CIT GROUP/BUSINESS CREDIT, INC., as Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
Signature Page to Second Amendment
ORIGINATORS:
XXXXX LEMMERZ INTERNATIONAL – SEDALIA, INC.
XXXXX LEMMERZ INTERNATIONAL – GEORGIA, INC.
XXXXX LEMMERZ INTERNATIONAL IMPORT, INC.
XXXXX LEMMERZ INTERNATIONAL – COMMERCIAL HIGHWAY, INC.
XXXXX LEMMERZ INTERNATIONAL – WABASH, INC.
XXXXX LEMMERZ INTERNATIONAL – LAREDO, INC.
XXXXX LEMMERZ INTERNATIONAL – XXXXX, INC.
XXXXX LEMMERZ INTERNATIONAL – TECHNICAL CENTER, INC.
| By: | ||||||
| Xxxx Xxxxxxxx Treasurer |
Signature Page to Second Amendment
REMOVED ORIGINATORS:
| XXXXX LEMMERZ INTERNATIONAL — BRISTOL, INC. | ||||||
| By: | ||||||
| Xxxx Xxxxxxxx Treasurer |
||||||
| XXXXX LEMMERZ INTERNATIONAL — MONTAGUE, INC. | ||||||
| By: | ||||||
| Xxxx Xxxxxxxx Treasurer |
||||||
Signature Page to Second Amendment
Exhibit A
Amended and Restated Schedule 1 and Exhibit C to Originator Purchase Agreement
Schedule 1
List of Originators
Originators
Xxxxx Lemmerz International – Sedalia, Inc.
Xxxxx Lemmerz International – Commercial Highway, Inc.
Xxxxx Lemmerz International – Georgia, Inc.
Xxxxx Lemmerz International Import, Inc.
Xxxxx Lemmerz International – Wabash, Inc.
Xxxxx Lemmerz International – Laredo, Inc.
Xxxxx Lemmerz International – Xxxxx, Inc.
Xxxxx Lemmerz International – Technical Center, Inc.
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EXHIBIT C
Location of Records, Chief Executive Offices and Addresses
| Sole | ||||||||||||
| Chief | Principal | Federal | Jurisdiction | |||||||||
| Location of | Executive | Place of | Employer | Form of | of | |||||||
| Originator | Records | Office | Business | ID# | Organization | Organization | ||||||
Xxxxx Lemmerz
International –
Sedalia, Inc.
|
00000 Xxxxxxxxxx Xx. Xxxxxxxxxx, XX 00000 | 00000 Xxxxxxxxxx Xx. Xxxxxxxxxx, XX 00000 | 0000 X. Xxxx Xx. Xxxxxxx, XX 00000 | 00-0000000 | Corporation | Delaware | ||||||
Xxxxx Lemmerz
International –
Georgia, Inc.
|
00000 Xxxxxxxxxx Xx. Xxxxxxxxxx, XX 00000 | 00000 Xxxxxxxxxx Xx. Xxxxxxxxxx, XX 00000 | 0000 Xxxxxxx Xxxxx Xxxxxxxxxxx, XX 00000 |
00-0000000 | Corporation | Delaware | ||||||
Xxxxx Lemmerz
International Import,
Inc.
|
00000 Xxxxxxxxxx Xx. Xxxxxxxxxx, XX 00000 | 00000 Xxxxxxxxxx Xx. Xxxxxxxxxx, XX 00000 | 00000 Xxxxxxxxxx Xx. Xxxxxxxxxx, XX 00000 | 00-0000000 | Corporation | Delaware | ||||||
Xxxxx Lemmerz
International –
Wabash, Inc.
|
00000 Xxxxxxxxxx Xx. Xxxxxxxxxx, XX 00000 | 00000 Xxxxxxxxxx Xx. Xxxxxxxxxx, XX 00000 | 0000 X. Xxxx Xx. Xxx. Xxxxxx, XX 00000 | 00-0000000 | Corporation | Indiana | ||||||
Xxxxx Lemmerz
International –
Laredo, Inc.
|
00000 Xxxxxxxxxx Xx. Xxxxxxxxxx, XX 00000 | 00000 Xxxxxxxxxx Xx. Xxxxxxxxxx, XX 00000 | X.X. Xxx 0000 Xxxxxx, XX 00000 | 00-0000000 | Corporation | Texas |
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| Sole | ||||||||||||
| Chief | Principal | Federal | Jurisdiction | |||||||||
| Location of | Executive | Place of | Employer | Form of | of | |||||||
| Originator | Records | Office | Business | ID# | Organization | Organization | ||||||
Xxxxx Lemmerz
International –
Xxxxx, Inc.
|
00000 Xxxxxxxxxx Xx. Xxxxxxxxxx, XX 00000 | 00000 Xxxxxxxxxx Xx. Xxxxxxxxxx, XX 00000 | 29991 M60 Xxxx Xxxxx, XX 00000 |
00-0000000 | Corporation | Delaware | ||||||
Xxxxx Lemmerz
International –
Technical Center, Inc.
|
00000 Xxxxxxxxxx Xx. Xxxxxxxxxx, XX 00000 | 00000 Xxxxxxxxxx Xx. Xxxxxxxxxx, XX 00000 | 0000 X. 0 Xxxx Xx. Xxxxxxxx, XX 00000 | 00-0000000 | Corporation | Michigan | ||||||
Xxxxx Lemmerz International – Commercial Highway, Inc, |
00000 Xxxxxxxxxx Xx. Xxxxxxxxxx, XX 00000 | 00000 Xxxxxxxxxx Xx. Xxxxxxxxxx, XX 00000 | 000 Xxxxxxxxxx Xx. Xxxxx, XX 00000-0000 | 00-0000000 | Corporation | Delaware |
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