Exhibit 10.1
[Form of] WAIVER AND AGREEMENT dated as of
April 1, 2004 (this "Waiver"), to the Credit
Agreement dated as of November 28, 2000 (as amended
and restated as of June 20, 2002, and as amended by
Amendment No. 1 thereto dated as of July 15, 2003,
the "Credit Agreement"), among METALDYNE CORPORATION
("Holdings"), METALDYNE COMPANY LLC (the "Parent
Borrower"), the Foreign Subsidiary Borrowers party
thereto (together with Holdings and the Parent
Borrower, the "Borrowers"), the financial
institutions party to the Credit Agreement as lenders
(the "Lenders"), JPMORGAN CHASE BANK, as
Administrative Agent and Collateral Agent, CREDIT
SUISSE FIRST BOSTON, as Syndication Agent and
COMERICA BANK, FIRST UNION NATIONAL BANK, NATIONAL
CITY BANK and BANK ONE, NA, each as Documentation
Agent.
A. The Borrowers have requested that the Required Lenders agree to waive
certain provisions of the Credit Agreement as set forth herein.
B. The Required Lenders are willing so to waive such provisions of the Credit
Agreement pursuant to the terms and subject to the conditions set forth herein.
C. Capitalized terms used and not otherwise defined herein shall have the
meanings assigned thereto in the Credit Agreement.
SECTION 1. Waivers. (a) The Required Lenders hereby waive the
obligation to deliver (i) the consolidated balance sheets and related statements
of operations, stockholders' equity and cash flows as of the end of and for
fiscal year 2003 required to be delivered by Section 5.01(a) of the Credit
Agreement (the "2003 Financial Statements"), (ii) the consolidated balance
sheets and related statements of operations, stockholders' equity and cash flows
as of the end of and for the fiscal quarter ending March 31, 2004 required to be
delivered by Section 5.01(b) of the Credit Agreement (collectively with the 2003
Financial Statements, the "Covered Financial Statements") and (iii) the
certificate required to be delivered by Section 5.01(d)(i) of the Credit
Agreement, but only to the extent such certificate relates to or would cover any
of the Covered Financial Statements, in each case until the earlier of (x) the
date on which (A) an event of default occurs under any Material Indebtedness
(other than the Indentures (as defined below), the Credit Agreement, the
Permitted Receivables Financing and lease agreements) or (B) a notice of
termination is delivered under any lease agreement that constitutes or would
constitute Material Indebtedness, in each case for failure to deliver any of the
Covered Financial Statements, (y) the date that is 30 days after the date on
which a notice of default for failure to deliver any of the Covered Financial
Statements is delivered pursuant to any of the indentures (the "Indentures")
with respect to the 10% Senior Notes due 2013, the 11% Senior Subordinated Notes
due 2012 or the 10% Senior Subordinated Notes originally issued to an Affiliate
of DaimlerChrysler Inc. (provided that (i) no Revolving Loan (other than
Revolving Loans related to an LC Disbursement in
respect of any Letter of Credit that is outstanding on the date that this Waiver
becomes effective) shall be made and (ii) no Letters of Credit shall be issued,
in each case under the Credit Agreement, following the delivery of any such
notice of default under this clause(y)) or (z) June 1, 2004 (the period
commencing on the date this Waiver becomes effective and ending on the earlier
of the dates referred to in clauses (x), (y) and (z) of this Section being
referred to herein as the "Covered Period").
(b) The Required Lenders hereby waive, during the Covered Period, the
application of all representations and warranties in Article III of the Credit
Agreement and in any certificates delivered under the Credit Agreement to the
extent such representations and warranties relate to the Internal Evaluation (as
defined below), except to the extent that the facts relating to the matters that
are the subject of the Internal Evaluation become materially inconsistent with
such facts previously disclosed to the Administrative Agent, and such
inconsistency is materially adverse to the Lenders.
(c) The Required Lenders hereby waive, during the Covered Period, any
Default arising from (i) the failure of the Borrowers to comply with the
requirements of Sections 5.01(a), 5.01(b) and 5.01(d)(i) of the Credit Agreement
(to the extent limited by Section 1(a)(iii) above) and (ii) the application of
any of the representations and warranties in Article III of the Credit Agreement
and in any certificates delivered under the Credit Agreement (to the extent
limited by Section 1(b) above).
(d) The waivers provided for by paragraphs (a), (b) and (c) above shall
terminate and expire at 11:59 p.m., New York City time, on the final day of the
Covered Period, and at all times thereafter the Credit Agreement shall apply in
all respects, and the Administrative Agent and the Lenders shall have all such
rights and remedies, as if such waiver had never been granted.
SECTION 2. Representations and Warranties. The Borrowers represent and
warrant to the Administrative Agent and to each of the Lenders that:
(a) This Waiver has been duly authorized, executed and delivered by it
and constitutes a legal, valid and binding obligation of each Loan Party party
hereto, enforceable against such Loan Party in accordance with its terms.
(b) After giving effect to this Waiver, 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 if
made on and as of the date hereof, except to the extent such representations and
warranties expressly relate to an earlier date.
(c) After giving effect to this Waiver, no Default has occurred and is
continuing.
(d) The Parent Borrower's press release dated as of March 29, 2004,
attached hereto as Annex A (such matters that are described therein collectively
and all matters reasonably related thereto are referred to herein as the
"Internal Evaluation") states all material facts, and does not omit to state any
material facts, necessary to make
the statements concerning the Internal Evaluation misleading in any material
respect, in light of the circumstances in which they were made, as of the date
hereof.
SECTION 3. Waiver Fee. In consideration of the agreements of the
Required Lenders contained in this Waiver, the Parent Borrower agrees to pay to
the Administrative Agent, for the account of each Lender that delivers an
executed counterpart of this Waiver prior to 5:00 p.m., New York City time, on
April 1, 2004, a waiver fee (the "Waiver Fee") equal to 10 basis points on the
aggregate amount of the Commitments and outstanding Term Loans of such Lender.
SECTION 4. Conditions to Effectiveness. This Waiver shall become
effective as of April 1, 2004, when (a) the Administrative Agent shall have
received (i) counterparts of this Waiver that, when taken together, bear the
signatures of Holdings, the Parent Borrower and the Required Lenders and (ii)
the Waiver Fee, (b) the representations and warranties set forth in Section 2
hereof are true and correct (as set forth on an officer's certificate delivered
to the Administrative Agent) and (c) all fees and expenses required to be paid
or reimbursed by the Borrowers pursuant hereto or to the Credit Agreement or
otherwise, including all invoiced fees and expenses of counsel to the
Administrative Agent shall have been paid or reimbursed, as applicable.
SECTION 5. Credit Agreement. Except as specifically waived hereby, the
Credit Agreement shall continue in full force and effect in accordance with the
provisions thereof as in existence on the date hereof. Without limiting the
generality of the foregoing, the waivers contemplated under Section 1(a), (b)
and (c) above shall not affect the obligations of the Parent Borrower to deliver
other certificates required by the Credit Agreement except as specifically set
forth in Section 1(a), (b) or (c), provided that the Administrative Agent may
take such actions reasonably requested by the Parent Borrower with respect to
delivery of such required certificates to other Lenders to the extent necessary
to ensure that the Parent Borrower is in compliance with Regulation FD of the
Securities Exchange Act of 1934. This Waiver shall be a Loan Document for all
purposes.
SECTION 6. APPLICABLE LAW. THIS WAIVER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Counterparts. This Waiver 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 agreement. Delivery of an executed
signature page to this Waiver by facsimile transmission shall be effective as
delivery of a manually signed counterpart of this Waiver.
SECTION 8. Expenses. The Parent Borrower agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Waiver, including the fees, charges and disbursements of Cravath, Swaine & Xxxxx
LLP, counsel for the Administrative Agent.
SECTION 9. Headings. The headings of this Waiver are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
