1
EXHIBIT 10.31
AMENDMENT NO. 3 AND CONSENT
AMENDMENT NO. 3 AND CONSENT, dated as of March 9, 2001 (this
"Amendment"), under the THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
February 3, 1999 (as amended, supplemented or otherwise modified, the
"Agreement"), among XXXXX LEMMERZ INTERNATIONAL, INC., a Delaware corporation
(the "Borrower"), the several lenders from time to time parties to such
Agreement (the "Lenders"), CANADIAN IMPERIAL BANK OF COMMERCE, a
Canadian-chartered bank acting through its New York Agency, as administrative
agent for the Lenders thereunder and co-lead arranger (in such capacity, the
"Administrative Agent"), CREDIT SUISSE FIRST BOSTON, as syndication agent for
the Lenders thereunder and co-lead arranger, XXXXXXX XXXXX CAPITAL CORPORATION,
a Delaware corporation, as co-documentation agent for the Lenders thereunder,
and DRESDNER BANK AG, as co-documentation agent and European Swing Line
Administrator for the Lenders.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders and the Administrative
Agent are parties to the Agreement; and
WHEREAS, the Borrower has requested, and the Lenders have
agreed, to amend, and to consent to non-compliance with, certain of the
covenants set forth in the Agreement;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
1. Defined Terms. Terms defined in the Agreement and used
herein shall, unless otherwise indicated, have the meanings given to them in the
Agreement
2. Amendment to Subsection 8.1(a). Subsection 8.1(a) of the
Agreement is hereby amended by (i) deleting therefrom the line in the table of
Leverage Ratios covering the 4th fiscal quarter of 2000 and (ii) inserting, in
lieu thereof, the following:
"4th 5.4 to 1.00".
3. Amendment to Applicable Margin. (a) Notwithstanding the
applicable provisions of the Agreement, from and as of the Effective Date
through the effectiveness of the next succeeding Adjustment Date, the Applicable
Margin shall be 3.5% for Eurocurrency Loans and 2.00% for ABR Loans, and (b)
Schedule B of the Agreement is hereby amended by (i) deleting therefrom the line
in the table of Applicable Margins and Applicable Commitment Fee Rates covering
a Leverage Ratio of greater than or equal to 5.25 to 1 and (ii) inserting, in
lieu thereof, the following:
"Greater than or equal to 5.25 to 1 3.50% 2.00% .50%"
3
2
4. Consent. The Lenders hereby consent and agree that,
notwithstanding anything to the contrary in Section 7.2(c) of the Agreement, the
Borrower shall not be required to deliver to the Lenders until April 2, 2001 the
projections otherwise required to be so delivered not later than 45 days after
its January 31, 2001 fiscal year end.
5. Conditions to Effectiveness of Amendment. This Amendment
will become effective (as of the date first set forth above) on the date (the
"Effective Date") upon which the Administrative Agent shall have received
counterparts hereof, duly executed and delivered by the Borrower, each Guarantor
and the Majority Lenders.
6. Representations and Warranties. The Borrower represents and
warrants to each Lender that as of the date hereof and after giving effect to
this Amendment (a) the representations and warranties made by the Loan Parties
in the Loan Documents are true and correct in all material respects (except to
the extent that such representations and warranties are expressly stated to
relate to an earlier date, in which case such representations and warranties
shall have been true and correct in all material respects on and as of such
earlier date) and (b) no Default or Event of Default has occurred and is
continuing as of the date hereof; provided, that each reference to the Agreement
therein shall be deemed to be a reference to the Agreement after giving effect
to this Amendment.
7. Continuing Effect. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of any Lender or the
Administrative Agent under any of the Loan Documents, nor constitute a waiver of
any provisions of any of the Loan Documents. Except as expressly consented to or
waived hereby, the Agreement shall continue to be and shall remain in full force
and effect in accordance with its terms.
8. Counterparts. This Amendment may be executed by the parties
hereto in any number of separate counterparts (which may include counterparts
delivered by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. Any executed
counterpart delivered by facsimile transmission shall be effective for all
purposes hereof.
9. Payment of Expenses. The Borrower agrees to pay and
reimburse the Administrative Agent for all of its out-of-pocket costs and
reasonable expenses incurred in connection with this Amendment including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
10. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
[SIGNATURE LINES OMITTED]
4
