EXHIBIT 10.44
FOURTH AMENDMENT AND WAIVER TO REVOLVING
CREDIT AND GUARANTY AGREEMENT
FOURTH AMENDMENT AND WAIVER TO REVOLVING CREDIT AND GUARANTY
AGREEMENT, dated as of January 6, 2003 (this "Amendment and Waiver"), among
Xxxxx Lemmerz International, Inc. (the "Borrower") and a debtor and
debtor-in-possession in a case pending under Chapter 11 of the Bankruptcy Code,
each of the direct and indirect subsidiaries of the Borrower listed as
Guarantors on the signature pages hereto (collectively, the "Guarantors"), each
of which is a debtor and debtor-in-possession in a case pending under Chapter 11
of the Bankruptcy Code, the commercial banks, finance companies, insurance
companies or other financial institutions or funds from time to time party
thereto (collectively, the "Lenders") and Canadian Imperial Bank of Commerce, as
administrative agent (in such capacity, the "Administrative Agent") for the
Lenders.
WITNESSETH:
WHEREAS, the Borrower, the Guarantors, the Lenders and the
Administrative Agent are parties to that certain Revolving Credit and Guaranty
Agreement, dated as of December 17, 2001 (as amended, restated or otherwise
modified from time to time, the "Credit Agreement");
WHEREAS, the Bankruptcy Court entered the Final Order on
January 28, 2002 approving, among other things, the loans made by the Lenders
described in the Credit Agreement (the "Final Order");
WHEREAS, the Borrower has requested, and the Lenders and the
Administrative Agent have, on terms and conditions set forth herein, agreed to
amend and waive certain provisions of the Credit Agreement; and
WHEREAS, from and after the Effective Date (as hereinafter
defined) of this Amendment and Waiver, the Credit Agreement shall be amended and
the waiver set forth herein shall become effective, subject to and upon the
terms and conditions set forth herein.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and subject to the fulfillment of
the conditions set forth below, the parties hereto agree as follows:
SECTION 1. Definitions. Unless otherwise defined herein, or
the context otherwise requires, capitalized terms used in this Amendment and
Waiver shall have the meanings ascribed to such terms in the Credit Agreement.
SECTION 2. Waiver. The Company has requested that the
provisions of Section 6.10 and Section 6.11 of the Credit Agreement be waived
solely to permit the acquisition by Xxxxx Lemmerz Werke GmbH of an existing
German shelf corporation to become a non-debtor Foreign Subsidiary ("New GmbH")
and to permit the transfer of assets from Xxxxx Lemmerz Werke GmbH to New GmbH
in order to effect a reorganization in response to a change in the applicable
German tax laws.
On the terms and subject to the conditions set forth herein,
the Required Lenders hereby grant a limited waiver with respect to Section 6.10
and Section 6.11 of the Credit Agreement solely to the
extent such provisions would prohibit or restrict the ability of the Company to
effect the acquisition of and investment in New GmbH by Xxxxx Lemmerz Werke
GmbH, to transfer to New GmbH substantially all of the assets of Xxxxx Lemmerz
Werke GmbH and to execute and deliver all documents and instruments necessary to
effect the foregoing.
SECTION 3. Amendments to the Credit Agreement. Section 7.01(p)
of the Credit Agreement is hereby amended by deleting such section in its
entirety and inserting in lieu thereof the following:
"(p) the Bankruptcy Court shall have failed to approve a
disclosure statement filed by the Debtors on or before
February 7, 2003, or such later date as determined by the
Administrative Agent, in its sole discretion, without the
affirmative vote or consent of the Lenders; provided that in
no case shall such later date as determined by the
Administrative Agent occur after March 11, 2003.
SECTION 4. Amendment Fee. The Borrower hereby agrees to pay to
the Administrative Agent, for the ratable benefit of the Lenders which shall
have executed and delivered counterparts of this Amendment and Waiver by or
before 1:00 p.m. (New York City time) on December 24, 2002 (each such Lender, a
"Consenting Lender"), by wire transfer of immediately available funds, a
non-refundable fee (the "Amendment Fee") in an amount equal to 0.125% of the
portion of the Total Commitment attributable to the Consenting Lenders. The
Borrower shall pay to the Administrative Agent on the Effective Date the sum of
$250,000. The Administrative Agent shall distribute to each Consenting Lender a
portion of the Amendment Fee in an amount equal to 0.125% of the Commitment of
such Consenting Lender. The Administrative Agent shall return to the Borrower
the excess, if any, of the $250,000 paid by the Borrower on the Effective Date
less the amounts distributed to the Consenting Lenders pursuant to the preceding
sentence, together with a list of all Consenting Lenders and the amount of the
Amendment Fee distributed to each.
SECTION 5. Representations and Warranties. The Borrower and
each of the Guarantors represents and warrants (which representations and
warranties shall survive the execution and delivery hereof) to the
Administrative Agent and Lenders that:
(a) it has the corporate power and authority to execute,
deliver and perform the terms and provisions of this Amendment and
Waiver and the transactions contemplated hereby and has taken or caused
to be taken all necessary corporate action to authorize the execution,
delivery and performance of this Amendment and Waiver and the
transactions contemplated hereby;
(b) no consent of any person (including, without limitation,
shareholders or creditors of the Borrower or any Guarantor), and no
action of, or filing with any governmental or public body or authority
is required to authorize, or is otherwise required in connection with
the execution, delivery and performance of this Amendment and Waiver
and the other instruments and documents contemplated hereby which has
not been obtained;
(c) each of this Amendment and Waiver and any other
instruments and documents contemplated hereby has been duly executed
and delivered by a duly authorized officer on behalf of such party, and
constitutes a legal, valid and binding obligation of such party
enforceable against such party in accordance with its terms, subject to
bankruptcy, reorganization, insolvency, moratorium and other similar
laws affecting the enforcement of creditors' rights generally and the
exercise of judicial discretion in accordance with general principles
of equity;
(d) the execution, delivery and performance of this Amendment
and Waiver, and the other instruments and documents contemplated hereby
will not violate any law, statute or regulation, or any order or decree
of any court or governmental instrumentality, or conflict with, or
result in the breach of, or constitute a default under any contractual
obligation of such party;
(e) after giving effect to this Amendment and Waiver, there
does not exist any Default or Event of Default; and
(f) after giving effect to this Amendment and Waiver, the
representations and warranties contained in the Credit Agreement and in
the other Loan Documents are true and correct in all material respects
on and as of the Effective Date as if such representations and
warranties had been made on and as of the Effective 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).
SECTION 6. Conditions to Effectiveness. This Amendment and
Waiver shall become effective on the date (the "Effective Date") upon which the
following conditions have been satisfied in full or waived by the Administrative
Agent in writing:
(a) the Administrative Agent shall have received in form and
substance satisfactory to the Administrative Agent and its counsel,
counterparts of this Amendment and Waiver executed by the Borrower, the
Guarantors, and the Required Lenders and such other approvals or
documents as the Administrative Agent may reasonably request;
(b) the Administrative Agent shall have received by wire
transfer of immediately available funds, for the ratable benefit of the
Consenting Lenders, the Amendment Fee;
(c) all representations and warranties contained in this
Amendment and Waiver or otherwise made in writing to the Administrative
Agent in connection herewith shall be true and correct in all material
respects;
(d) no Default or Event of Default, shall have occurred and be
continuing;
(e) counsel for the Administrative Agent shall have received,
by wire transfer of immediately available funds, the outstanding
attorney fees and disbursements invoiced to the Borrower and required
to be paid under Section 13 of this Amendment and Waiver and are
properly payable under Sections 14(D) and 21 of the Final Order; and
(f) the Administrative Agent shall have received such other
instruments, documents, opinions and assurances as the Administrative
Agent or its counsel may reasonably request.
SECTION 7. Ratification: Waiver of Defenses; and Release.
(a) The Credit Agreement and the other Loan Documents remain
in full force and effect and are hereby ratified and affirmed. The
Borrower and each Guarantor hereby (i) confirms and agrees that the
Borrower is truly and justly indebted to the Administrative Agent and
the Lenders in the aggregate amount of the Obligations without defense,
counterclaim or offset of any kind whatsoever; and (ii) reaffirms and
admits the validity and enforceability of the Credit Agreement and the
other Loan Documents and the Liens in the Collateral which were granted
pursuant to the Loan Documents, the Final Order and otherwise.
(b) This Amendment and Waiver shall be limited precisely as
written and shall not be deemed (i) to be a consent granted pursuant
to, or a waiver or modification of, any other term or condition of the
Credit Agreement or any of the instruments or agreements referred to
therein or a waiver of any Default or Event of Default under the Credit
Agreement, whether or not known to the Administrative Agent or the
Lenders or (ii) to prejudice any other right or rights which the
Administrative Agent or the Lenders may now have or have in the future
under or in connection with the Credit Agreement or any of the
instruments or agreements referred to therein. Except to the extent
hereby waived or modified, the Credit Agreement and each of the other
Loan Documents shall continue in full force and effect in accordance
with the provisions thereof on the date hereof.
SECTION 8. References. All references to the "Credit
Agreement", "thereunder", "thereof" or words of like import in the Credit
Agreement or any other Loan Document and the other documents and instruments
delivered pursuant to or in connection therewith shall mean and be a reference
to the Credit Agreement as modified hereby and as each may in the future be
amended, restated, supplemented or modified from time to time. This Amendment
and Waiver shall constitute a Loan Document.
SECTION 9. Counterparts. This Amendment and Waiver may be
executed by the parties hereto individually or in combination, in one or more
counterparts, each of which shall be an original and all of which, taken
together, shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page by telecopier shall be effective as delivery of
a manually executed counterpart.
SECTION 10. GOVERNING LAW. THIS AMENDMENT AND WAIVER AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 11. Successors and Assigns. The provisions of this
Amendment and Waiver shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
SECTION 12. Acknowledgement by Guarantors. Each of the
Guarantors hereby acknowledge that it has read this Amendment and Waiver and
consents to the terms hereof and further confirms and agrees that the Security
and Pledge Agreement to which such Guarantor is a party and all of the
Collateral, as the case may be, described therein do, and shall continue to,
secure the payment of all of the Secured Obligations (in each case, as defined
in the Security and Pledge Agreement).
SECTION 13. Costs and Expenses. The Borrower agrees that its
obligations set forth in Section 10.5 of the Credit Agreement shall extend to
the preparation, execution and delivery of this Amendment and Waiver (whether or
not this Amendment and Waiver becomes effective), including, but not limited to,
the reasonable fees and disbursements of Xxxxxxxx Chance US LLP, counsel for the
Administrative Agent.
SECTION 14. Severability. If any provisions of this Amendment
and Waiver shall be held invalid or unenforceable in whole or in part in any
jurisdiction, such provision shall, as to such jurisdiction, be ineffective to
the extent of such invalidity or enforceability without in any manner affecting
the validity or enforceability of such provision in any other jurisdiction or
the remaining provisions of this Amendment and Waiver in any jurisdiction.
SECTION 15. Survival. All representations, warranties,
covenants, agreements, undertakings, waivers and releases of the Borrower and
the Guarantors contained herein shall survive the Termination Date and the
indefeasible payment in full in cash of the Obligations.
SECTION 16. Integration. This Amendment and Waiver represents
the entire agreement of the parties hereto with respect to the amendment of the
Credit Agreement. There are no representations, agreements, arrangements or
understandings, oral or written, between the parties hereto, relating to the
subject matter of this Amendment and Waiver, which are not fully expressed
herein.
SECTION 17. Miscellaneous. The parties hereto shall, at any
time and from time to time following the execution of this Amendment and Waiver,
execute and deliver all such further instruments and take all such further
instruments and take all such further action as may be reasonably necessary or
appropriate in order to carry out the provisions of this Amendment and Waiver.
SECTION 18. Headings. Section headings in this Amendment and
Waiver are included herein for convenience of reference only and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Amendment and Waiver.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Waiver to be duly executed as of the day and the year first
written.
BORROWER:
XXXXX LEMMERZ INTERNATIONAL, INC.
By:_________________________________________
Name:
Title:
GUARANTORS:
XXXXX LEMMERZ INTERNATIONAL - CALIFORNIA,
INC.
HLI (EUROPE), LTD.
XXXXX LEMMERZ INTERNATIONAL - MEXICO, INC.
XXXXX LEMMERZ INTERNATIONAL - OHIO, INC.
XXXXX LEMMERZ INTERNATIONAL - XXXXXX, INC.
XXXXX LEMMERZ INTERNATIONAL - GEORGIA, INC.
XXXXX LEMMERZ INTERNATIONAL - CMI, INC.
XXXXX LEMMERZ INTERNATIONAL - TEXAS, INC.
XXXXX LEMMERZ INTERNATIONAL - HUNTINGTON,
INC.
XXXXX LEMMERZ INTERNATIONAL - XXXXX, INC.
XXXXX LEMMERZ INTERNATIONAL - KENTUCKY, INC.
XXXXX LEMMERZ INTERNATIONAL - CADILLAC, INC.
HLI - SUMMERFIELD REALTY CORP.
XXXXX LEMMERZ INTERNATIONAL - MONTAGUE, INC.
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
XXXXX LEMMERZ INTERNATIONAL - BRISTOL, INC.
XXXXX LEMMERZ INTERNATIONAL - EQUIPMENT &
ENGINEERING, INC.
XXXXX LEMMERZ INTERNATIONAL - PCA, INC.
XXXXX LEMMERZ INTERNATIONAL - WABASH, INC.
XXXXX LEMMERZ INTERNATIONAL - SOUTHFIELD,
INC.
HLI - VENTURES, INC.
XXXXX LEMMERZ INTERNATIONAL - LAREDO, INC.
XXXXX LEMMERZ INTERNATIONAL -
TRANSPORTATION, INC.
XXXXX LEMMERZ INTERNATIONAL - TECHNICAL
CENTER, INC.
XXXXX LEMMERZ INTERNATIONAL - PETERSBURG,
INC.
HLI REALTY, INC.
HLI NETHERLANDS HOLDINGS, INC.
XXXXX LEMMERZ INTERNATIONAL IMPORT, INC.
CMI - QUAKER ALLOY, INC.
By:_________________________________________
Name:
Title:
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
ADMINISTRATIVE AGENT:
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent
By:__________________________________________
Name:
Title:
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
BANK OF AMERICA, N.A., as a Lender
By:
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Name:
Title:
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
BANK OF NEW YORK, as a Lender
By:
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Name:
Title:
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
BAYERISCHE HYPO-UND VEREINSBANK AG, as a
Lender
By:
---------------------------------------
Name:
Title:
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
CIBC, INC., as a Lender
By:
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Name:
Title:
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
CITICORP USA, INC., as a Lender
By:
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Name:
Title:
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
FLEET NATIONAL BANK, as a Lender
By:
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Name:
Title:
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
FOOTHILL INCOME TRUST, L.P., as a Lender
By:
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Name:
Title:
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
GENERAL ELECTRIC CAPITAL CORPORATION, as a
Lender
By:
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Name:
Title:
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
GMAC BUSINESS CREDIT, LLC, as a Lender
By:
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Name:
Title:
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
X.X. XXXXXX XXXXX BANK, as a Lender
By:
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Name:
Title:
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
MARINER LDC, as a Lender
By:
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Name:
Title:
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
PNC BANK, N.A., as a Lender
By:
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Name:
Title:
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
SATELLITE SENIOR INCOME FUND, LLC, as a
Lender
By:
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Name:
Title:
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
SUNAMERICA LIFE INSURANCE COMPANY, as a
Lender
By:
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Name:
Title:
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
TORONTO DOMINION (NEW YORK), INC., as a
Lender
By:
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Name:
Title:
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
TRANSAMERICA BUSINESS CAPITAL CORPORATION,
as a Lender
By:
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Name:
Title:
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
WHITEHALL BUSINESS CREDIT CORPORATION, as
a Lender
By:
---------------------------------------
Name:
Title:
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
XXXXXXX CAPITAL LTD., as a Lender
By:
---------------------------------------
Name:
Title:
FOURTH AMENDMENT AND WAIVER
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
