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EXHIBIT 10.2
FIRST AMENDMENT
FIRST AMENDMENT, dated as of November 26, 1997 (this "Amendment"), to the
Amended and Restated Credit and Guarantee Agreement, dated as of December 20,
1996 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among XXXX CORPORATION, a Delaware corporation (the "U.S.
Borrower"), XXXX CORPORATION CANADA LTD., a company organized under the laws of
the province of Ontario, Canada (the "Canadian Borrower"), the FOREIGN
SUBSIDIARY BORROWERS parties thereto (together with the U.S. Borrower and the
Canadian Borrower, the "Borrowers"), the several banks and other financial
institutions from time to time parties thereto (the "Lenders"), the Managing
Agents named therein (the "Managing Agents"), the Co-Agents named therein (the
"Co-Agents"), the Lead Managers named therein (the "Lead Managers"), and THE
BANK OF NOVA SCOTIA, a Canadian chartered bank (as hereinafter defined, the
"Canadian Administrative Agent"), and THE CHASE MANHATTAN BANK, a New York
banking corporation (as hereinafter defined, the "General Administrative
Agent"), as administrative agents for the Lenders thereunder (collectively, the
"Administrative Agents").
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, extensions of credit to the Borrowers; and
WHEREAS, the Borrowers have requested that certain provisions of the
Credit Agreement be modified in the manner provided for in this Amendment, and
the Lenders are willing to agree to such modifications as provided for in this
Amendment;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
2. Amendments to Credit Agreement. (A) Subsection 1.1 of the Credit
Agreement is hereby amended by (i) (A) deleting the word "and" appearing
immediately prior to clause (c) of the defined term "Interest Payment Date"
contained in such subsection and inserting in lieu thereof the punctuation ","
and (B) inserting the following new clause (d) immediately prior to the period
at the end of clause (c) of such definition:
"and (d) as to any Money Market Rate Swing Line Loan, the last
day of the interest period with respect thereto selected by
the U.S. Borrower and the Swing Line Lender"
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and (ii) adding the following new definitions to such subsection in correct
alphabetical order:
"`Money Market Rate': as defined in subsection 3.2(b).
`Money Market Rate Swing Line Loan': as defined in subsection
3.2(b)."
(B) Subsection 3.2(b) of the Credit Agreement is hereby amended by
deleting it in its entirety and inserting in lieu thereof the following:
"(b) Unless otherwise agreed between the U.S. Borrower and the
Swing Line Lender, such Swing Line Loan shall be an ABR Loan. Any
such ABR Loan may not be converted into a Eurodollar Loan. If,
however, the U.S. Borrower and the Swing Line Lender agree that a
Swing Line Loan (a "Money Market Rate Swing Line Loan") shall bear
interest at a fixed interest rate (a "Money Market Rate") for a
fixed interest period of up to 7 days, such Money Market Rate Swing
Line Loan shall bear interest for such interest period at such
interest rate so agreed upon. If a Money Market Rate Swing Line
Loan is not repaid on the last day of the interest period with
respect thereto, it shall on such date be converted automatically to
an ABR Loan. A Money Market Rate Swing Line Loan shall not be
optionally prepayable prior to the last day of the interest period
with respect thereto except with the consent of the Swing Line
Lender."
(C) Subsection 10.1 of the Credit Agreement is hereby amended by
adding the following new paragraph to the end of such subsection:
"(h) Each Money Market Rate Swing Line Loan shall bear
interest during the interest period applicable thereto at a rate per
annum equal to the applicable Money Market Rate; provided, that any
Money Market Rate Swing Line Loan in which Lenders purchase
participating interests pursuant to the last sentence of subsection
3.5(a) shall, from and after the date of such purchase, bear
interest until the end of the interest period applicable thereto at
a rate per annum equal to the ABR."
(D) Subsection 10.4 of the Credit Agreement is hereby amended by (i)
inserting the phrase "(other than Money Market Rate Swing Line Loans)"
immediately after the term "Swing Line Loans" in the first sentence of
paragraph (a) of such subsection and (ii) inserting the phrase "(other than
Money Market Rate Swing Line Loans)" directly after the word "outstanding" in
paragraph (g) of such subsection.
(E) Subsection 10.6(a) of the Credit Agreement is hereby amended by
deleting the phrase "Eurodollar Rate or the Eurocurrency Rate" contained in two
places in the first sentence of such subsection and inserting in lieu thereof
in each such place the phrase "Eurodollar Rate, Eurocurrency Rate or Money
Market Rate".
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(F) Subsection 10.11 of the Credit Agreement is hereby amended by
inserting the following phrase immediately after the word "thereto," contained
in clause (d) of such subsection:
"or the making by the U.S. Borrower of a prepayment of Money Market
Rate Swing Line Loans on a day which is not the last day of the
interest period with respect thereto, including, without limitation,
in each case, any such loss or expense arising from the reemployment
of funds obtained by it or from fees payable to terminate the
deposits from which such funds were obtained,"
(G) Subsection 14.1(a) of the Credit Agreement is hereby amended by
deleting it in its entirety and inserting in lieu thereof the following:
"(a) [RESERVED]".
(H) Subsection 14.2(i) of the Credit Agreement is hereby amended by (i)
deleting the amount "$80,000,000" contained in such subsection and inserting in
lieu thereof the amount "$100,000,000" and (ii) deleting the proviso contained
in such subsection and inserting in lieu thereof the following new proviso:
"provided that such letters of credit are not used in connection with the
issuance of any commercial paper by the U.S. Borrower or its Subsidiaries"
(I) Subsection 14.3 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of paragraph (r) of such subsection, (ii)
deleting paragraph (s) of such subsection in its entirety and inserting in lieu
thereof the following new paragraph (s):
"(s) Liens in respect of U.S. assets with an aggregate book
value not to exceed 10% of the Consolidated Net Worth of the U.S.
Borrower;"
and (iii) adding the following new paragraph (t) to the end of such
subsection:
"(t) extensions, renewals and replacements of any Lien
described in subsections 14.3(a) through (s) above, provided that
the principal amount of the Indebtedness secured thereby is not
increased and such extension or renewal is limited to the property
so encumbered (and improvements or attachments thereto)."
(J) Subsection 14.4(d) of the Credit Agreement is hereby amended by
deleting the amount "$60,000,000" contained in such subsection and inserting in
lieu thereof the amount "$100,000,000".
(K) Subsection 14.4(e) of the Credit Agreement is hereby amended by
deleting the amount "$10,000,000" contained in such subsection and inserting in
lieu thereof the amount "$50,000,000".
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(L) Subsection 14.5(e) of the Credit Agreement is hereby amended by
deleting the phrase "and is not a party to the Subsidiary Guarantee or the
Additional Subsidiary Guarantee" contained therein in its entirety.
(M) Subsection 14.7 of the Amended and Restated Credit and Guarantee
Agreement is hereby amended by deleting clause (b) contained therein in its
entirety and inserting in lieu thereof the following new clause:
"(b) if no Default or Event of Default has occurred and is
continuing (or would occur and be continuing after giving effect
thereto) when any such dividend is declared by the Board of
Directors of the U.S. Borrower or such payment is made on the
account of the purchase of capital stock of the U.S. Borrower, cash
dividends on the U.S. Borrower's capital stock or such payments made
on the account of the purchase of capital stock of the U.S. Borrower
not to exceed, in the aggregate, in any fiscal quarter (the "Payment
Quarter") an amount equal to the greater of (i) $25,000,000 and (A)
100% of Consolidated Net Income of the U.S. Borrower and its
consolidated Subsidiaries for the period of four consecutive fiscal
quarters ended immediately prior to the Payment Quarter (such period
of four quarters being the "Calculation Period" in respect of such
Payment Quarter), less (B) the cash amount of all (I) dividends paid
and redemptions made by the U.S. Borrower during such Calculation
Period in respect of capital stock and (II) payments made on the
account of the purchase of capital stock of the U.S. Borrower during
such Calculation Period, but only to the extent permitted by the
terms of the outstanding Subordinated Debt"
(N) Subsection 14.8 of the Credit Agreement is hereby amended by deleting
it in its entirety and inserting in lieu thereof the following:
"14.8 [RESERVED]".
(O) Subsection 14.9 of the Credit Agreement is hereby amended by (i)
deleting paragraph (e) of such subsection in its entirety and inserting in lieu
thereof the following new paragraph:
"(e) (i) loans, advances, and extensions of credit by any Subsidiary
to the U.S. Borrower and (ii) loans, advances, extensions of credit,
capital contributions and other investments by the U.S. Borrower or any
Subsidiary to or in any Subsidiary;",
(ii) deleting the word "and" at the end of paragraph (l) of such subsection,
(iii) deleting the period at the end of paragraph (m) of such subsection and
inserting in lieu thereof the punctuation and word"; and" and (iv) inserting at
the end of such subsection the following new paragraph:
"(n) investments in or acquisitions of companies or business
units, in each case, engaged primarily in the manufacturing of
automotive parts business and businesses related thereto so long as
(i) no Default or Event of Default shall have
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occurred and be continuing before and after giving effect to such
transaction, (ii) the U.S. Borrower would be in pro forma compliance with
subsection 14.1(c) after giving effect to such transaction and (iii) such
transaction does not include a hostile bid made by the U.S. Borrower or
its Subsidiaries."
3. Conditions to Effectiveness. This Amendment shall become effective on
the date (the "Amendment Effective Date") on which the General Administrative
Agent shall have received counterparts hereof, duly executed and delivered by
the Borrowers, the Swing Line Lender and the Majority Lenders.
4. Representations and Warranties. The Borrowers represent and warrant
that the representations and warranties made by the Borrowers in the Loan
Documents are true and correct in all material respects on and as of the
Amendment Effective Date, before and after giving effect to the effectiveness
of this Amendment, as if made on and as of the Amendment Effective Date, except
to the extent such representations and warranties expressly relate to an
earlier date.
5. Payment of Expenses. The Borrowers agree to pay or reimburse the
General Administrative Agent for all of their out-of-pocket costs and
reasonable expenses incurred in connection with this Amendment and any other
documents prepared in connection herewith and the transactions contemplated
hereby, including, without limitation, the reasonable fees and disbursements of
counsel to the General Administrative Agent.
6. No Other Amendments; Confirmation. Except as expressly amended,
modified and supplemented hereby, the provisions of the Credit Agreement, the
Notes and the other Loan Documents are and shall remain in full force and
effect.
7. Governing Law; Counterparts. (a) This Amendment and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
(b) This Amendment may be executed by one or more of the parties to this
Amendment on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A
set of the copies of this Amendment signed by all the parties shall be lodged
with the U.S. Borrower and the General Administrative Agent. This Amendment
may be delivered by facsimile transmission of the relevant signature pages
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
XXXX CORPORATION
By: /s/
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Title:
XXXX CORPORATION CANADA LTD.
By: /s/
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Title:
XXXX CORPORATION SWEDEN AB
By: /s/
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Title:
LEAR FRANCE SARL
By: /s/
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Title:
XXXX CORPORATION GMBH & CO. KG
By: /s/
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Title:
NS BETEILIGUNG GMBH
By: /s/
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Title:
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THE CHASE MANHATTAN BANK, as General
Administrative Agent, as a Lender and as
Swing Line Lender
By: /s/
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Title:
THE BANK OF NOVA SCOTIA
By: /s/
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Title:
CHASE MANHATTAN BANK DELAWARE
By: /s/
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Title:
ABN AMRO BANK N.V. CHICAGO BRANCH
By: /s/
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Title:
By: /s/
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Title:
THE ASAHI BANK, LTD.
By: /s/
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Title:
BANCA NAZIONALE DEL LAVORO S.P.A.
NEW YORK BRANCH
By: /s/
----------------------------
Title:
By: /s/
----------------------------
Title:
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BANK AUSTRIA AKTIENGESELLSCHAFT
By: /s/
----------------------------
Title:
By: /s/
----------------------------
Title:
BANK OF AMERICA NT & SA
By: /s/
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Title:
BANK OF MONTREAL
By: /s/
----------------------------
Title:
THE BANK OF NEW YORK
By: /s/
----------------------------
Title:
THE BANK OF TOKYO-MITSUBISHI LTD., NEW
YORK BRANCH
By: /s/
----------------------------
Title:
By:
----------------------------
Title:
BANKERS TRUST COMPANY
By: /s/
----------------------------
Title:
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BANQUE NATIONALE DE PARIS
By: /s/
----------------------------
Title:
BANQUE PARIBAS
By: /s/
----------------------------
Title:
By: /s/
----------------------------
Title:
CREDIT AGRICOLE INDOSUEZ
By: /s/
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Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/
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Title:
CIBC INC.
By: /s/
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Title:
CITICORP USA, INC.
By: /s/
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Title:
COMERICA BANK
By: /s/
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Title:
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COOPERATIVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,"RABOBANK
NEDERLAND", NEW YORK BRANCH
By: /s/
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Title:
By: /s/
----------------------------
Title:
CREDITO ITALIANO S.P.A.
By: /s/
----------------------------
Title:
By: /s/
----------------------------
Title:
CREDIT LYONNAIS CHICAGO BRANCH
By: /s/
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Title:
DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH
By: /s/
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Title:
DRESDNER BANK AG NEW YORK AND GRAND
CAYMAN BRANCHES
By: /s/
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Title:
By: /s/
----------------------------
Title:
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FIRST AMERICAN NATIONAL BANK
By: /s/
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Title:
FIRST BANK NATIONAL ASSOCIATION
By: /s/
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Title:
BANKBOSTON, N.A.
By: /s/
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Title:
FIRST UNION NATIONAL BANK
By: /s/
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Title:
FLEET NATIONAL BANK
By:
----------------------------
Title:
THE FUJI BANK, LIMITED
By: /s/
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Title:
GULF INTERNATIONAL BANK B.S.C.
By: /s/
----------------------------
Title:
By: /s/
----------------------------
Title:
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THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/
----------------------------
Title:
ISTITUTO BANCARIO SAN PAOLO DI TORINO
SPA
By: /s/
----------------------------
Title:
By: /s/
----------------------------
Title:
KEYBANK NATIONAL ASSOCIATION
By: /s/
----------------------------
Title:
KREDIETBANK N.V.
By:
----------------------------
Title:
By:
----------------------------
Title:
XXXXXX COMMERCIAL PAPER INC.
By: /s/
----------------------------
Title:
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THE LONG-TERM CREDIT BANK OF JAPAN,
LTD. CHICAGO BRANCH
By: /s/
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Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION, CHICAGO BRANCH
By: /s/
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Title:
THE MITSUI TRUST AND BANKING COMPANY,
LIMITED
By: /s/
----------------------------
Title:
NATIONSBANK N.A.
By: /s/
----------------------------
Title:
NBD BANK
By: /s/
----------------------------
Title:
ROYAL BANK OF CANADA
By: /s/
----------------------------
Title:
THE ROYAL BANK OF SCOTLAND PLC
By: /s/
----------------------------
Title:
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THE SAKURA BANK, LTD.
By:
----------------------------
Title:
THE SANWA BANK LIMITED,
CHICAGO BRANCH
By: /s/
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Title:
SOCIETE GENERALE
By: /s/
----------------------------
Title:
THE SUMITOMO BANK, LIMITED
CHICAGO BRANCH
By: /s/
----------------------------
Title:
THE SUMITOMO TRUST AND BANKING CO.,
LTD., NEW YORK BRANCH
By:
----------------------------
Title:
THE TOKAI BANK, LTD.,
CHICAGO BRANCH
By: /s/
----------------------------
Title:
THE TOYO TRUST & BANKING CO., LTD.
By:
----------------------------
Title:
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YASUDA TRUST AND BANKING COMPANY,
LIMITED
By: /s/
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Title:
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ACKNOWLEDGEMENT AND CONSENT
Each of undersigned corporations as guarantors under (i) the Second
Amended and Restated Subsidiary Guarantee, dated as of December 20, 1996 (the
"Second Amended and Restated Subsidiary Guarantee"), made by Xxxx Corporation
(Germany) Ltd., Xxxx Seating Holdings Corp. No. 50, Lear Tooling Corporation,
Xxxx Corporation Mendon, LS Acquisition Corporation No. 24, Fair Haven
Industries, Inc., ASAA, Inc., Automotive Industries Manufacturing Inc. and
Masland Industries, Inc. in favor of The Chase Manhattan Bank, as General
Administrative Agent, and (ii) the Second Amended and Restated Additional
Subsidiary Guarantee, dated as of December 20, 1996 (together with the Second
Amended and Restated Subsidiary Guarantee, the "Subsidiary Guarantees"), made
by Lear Operations Corporation and NAB Corporation in favor of The Chase
Manhattan Bank, as General Administrative Agent, hereby (a) consents to the
transaction contemplated by this Amendment and (b) acknowledges and agrees that
the guarantees contained in such Subsidiary Guarantees (and all collateral
security therefor) are, and shall remain, in full force and effect after giving
effect to this Amendment and all prior modifications to the Credit Agreement.
XXXX CORPORATION (GERMANY) LTD.
XXXX SEATING HOLDINGS CORP. NO. 50
XXXX CORPORATION MENDON
LS ACQUISITION CORPORATION NO. 24
FAIR HAVEN INDUSTRIES, INC.
ASAA, INC.
AUTOMOTIVE INDUSTRIES
MANUFACTURING INC.
MASLAND INDUSTRIES, INC.
XXXX OPERATIONS CORPORATION
NAB CORPORATION
By:/s/
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Title: Authorized Signatory
