Contract
Exhibit 99(a)
SECOND SUPPLEMENTAL SECOND AMENDMENT TO ACCOMMODATION AGREEMENT AND THIRD AMENDMENT TO AMENDED
AND RESTATED REVOLVING CREDIT, TERM LOAN AND GUARANTY AGREEMENT (this “Amendment”) dated as
of April 22, 2009, and effective as of the Effective Date (as hereinafter defined), among DELPHI
CORPORATION, a Delaware corporation (the “Borrower”), a debtor and debtor-in-possession in
a case pending under Chapter 11 of the Bankruptcy Code, and the subsidiaries of the Borrower
signatory hereto (each a “Guarantor” and collectively the “Guarantors”), each of
which Guarantors is a debtor and debtor-in-possession in a case pending under Chapter 11 of the
Bankruptcy Code, the Lenders party hereto, and JPMORGAN CHASE BANK, N.A., as administrative agent
for the Lenders (in such capacity, the “Administrative Agent”).
WITNESSETH:
WHEREAS, the Borrower, the Guarantors, the Lenders (or in the case of the Accommodation
Agreement, certain Lenders), the Administrative Agent and Citicorp USA, Inc., as Syndication Agent,
are parties to (a) that certain Amended and Restated Revolving Credit, Term Loan and Guaranty
Agreement, dated as of May 9, 2008 (as the same has been and may be further amended, modified or
supplemented from time to time, the “Credit Agreement”) and (b) that certain Accommodation
Agreement, dated as of December 12, 2008 (as the same has been amended on January 30, 2009 pursuant
to the First Amendment thereto, on February 24, 2009 pursuant to the Supplemental Amendment
thereto, and on April 3, 2009 pursuant to the Supplemental Second Amendment thereto, and may be
further amended, modified or supplemented from time to time, the “Accommodation
Agreement”); unless otherwise specifically defined herein, each term used herein that is
defined in the Accommodation Agreement has the meaning assigned to such term in the Accommodation
Agreement;
WHEREAS, the Borrower and the Guarantors desire to modify the Accommodation Agreement as
provided herein;
WHEREAS, the Required First Priority Participant Lenders and the Required Total Participant
Lenders have agreed, subject to the terms and conditions hereinafter set forth, to modify the
Accommodation Agreement in response to the Borrower’s request as set forth below;
WHEREAS, the Required Lenders have agreed, subject to the terms and conditions hereinafter set
forth, to modify the Credit Agreement in response to the Borrower’s request as set forth below;
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration
(the receipt and sufficiency of which is hereby acknowledged), the parties hereto hereby agree as
follows:
1. Amendments to Accommodation Agreement. The Accommodation Agreement is hereby
amended as follows:
(a) Section 1(b) of the Accommodation Agreement is hereby amended by adding the
following definitions in alphabetical order to said Section 1(b):
“Second Supplemental Second Amendment to the Accommodation
Agreement” shall mean the Second Supplemental Second Amendment
to the Accommodation Agreement, dated as of April 22, 2009.
(b) Section 1(b) of the Accommodation Agreement is hereby further amended by amending
and restating clause (iv) of the definition of “Accommodation Period” in its
entirety to read as follows:
“(iv) May 9, 2009, unless the Required First Priority
Participant Lenders and the Required Total Participant Lenders shall
have delivered to the Borrower a Satisfactory Termsheet Notice on or
prior to May 8, 2009; and”
(c) Section 1(b) of the Accommodation Agreement is hereby further amended by deleting
the phrase “, on or prior to April 17, 2009,” in the definition of “GM Transaction
Termsheet Condition”.
(d) Section 1(b) of the Accommodation Agreement is hereby further amended by amending
and restating the definition of “Minimum Borrowing Base Cash Collateral Account
Balance” in its entirety to read as follows:
“Minimum Borrowing Base Cash Collateral Account
Balance” shall mean $115,000,000; provided that if the
GM Transaction Termsheet sets forth a different amount for the
Minimum Borrowing Base Cash Collateral Account Balance, the Minimum
Borrowing Base Cash Collateral Account Balance shall be such amount
from and after the date, if any, on which the Borrower shall have
received a Satisfactory Termsheet Notice.
(e) Section 3(e)(iv) of the Accommodation Agreement is hereby amended by adding the
following phrase at the end of the first sentence thereof: “or by Section 5(II)(E) of the
Second Supplemental Second Amendment to the Accommodation Agreement.”
(f) Section 3(g) of the Accommodation Agreement is hereby amended and restated in its
entirety to read as follows:
“On each date on or after April 1, 2009 on which the Borrower
is obligated to pay interest in respect of the Tranche C Loan
pursuant to Section 2.08(c) of the Credit Agreement, the Borrower
shall apply an amount equal to the amount of interest that the
Borrower is otherwise required to pay to the Tranche C Lenders in
respect of interest accrued on or after April 1, 2009 (net of any
amount previously so applied on or after April 1, 2009 pursuant to
this Section 3(g)) to repay Obligations pursuant to Section 2.19(b)
of the Credit Agreement. For the avoidance of doubt, such
application by the Borrower shall not affect the Borrower’s
obligation to pay, and each Tranche C Lender’s right
to receive, interest on such Tranche C Lender’s portion of the
Tranche C Loans pursuant to Section 2.08 and 2.09 of the Credit
Agreement.”
(g) Section 3(m) of the Accommodation Agreement is hereby amended by deleting the dates
“April 20, 2009” and “April 17, 2009” in clause (i) thereof and replacing them with “May 5,
2009” and “May 4, 2009” respectively.
(h) Schedule I of the Accommodation Agreement is hereby amended by deleting the date
“April 17, 2009” in paragraph 4 thereof and replacing it with “May 4, 2009”.
2. Amendments to Credit Agreement
(a) The parties hereto hereby agree that upon their execution and delivery of this
Amendment and subject to the other terms and conditions set forth herein, including the
terms and conditions set forth in Section 4 hereof with respect to the effectiveness of this
Amendment, (i) the Credit Agreement shall be amended as set forth herein and shall be
binding upon all parties thereto, subject to the terms hereof and (ii) each reference to
“hereof”, “hereunder”, “herein” and “hereby” and each other similar reference and each
reference to “this Agreement” and each other similar reference contained in the Credit
Agreement shall, after the Effective Date, refer to such agreements as amended by this
Amendment.
(b) The last paragraph of Section 7.01 of the Credit Agreement is amended by (x)
replacing “and” with “,” between the second appearance of “Existing Pre-Petition Agent” and
the second appearance of “to the United States Trustee for the Southern District of New
York” and (y) adding “and to the Pension Benefit Guaranty Corporation” after the second
appearance of “to the United States Trustee for the Southern District of New York”.
3. Representation and Warranty. The Borrower and the Guarantors hereby represent and
warrant that (i) all representations and warranties in the Accommodation Agreement, the Credit
Agreement and the other Loan Documents are true and correct in all material respects on and as of
the Effective Date except to the extent such representations and warranties expressly relate to an
earlier date and (ii) after giving effect to the amendments set forth in Section 1(c), (g) and (h)
above as if such amendments had been in effect on April 17, 2009, no Event of Default (other than a
Specified Default) has occurred and is continuing on the date hereof.
4. Conditions to Effectiveness. This Amendment shall become effective on the date
(the “Effective Date”) on which each of the following shall have occurred and the
Administrative Agent shall have received evidence reasonably satisfactory to it of such occurrence:
(i) this Amendment shall have been executed by the Borrower, the Guarantors, the
Required First Priority Participant Lenders, the Required Total Participant Lenders and the
Required Lenders; and
(ii) immediately prior to the effectiveness of this Amendment, but after giving effect
to the amendments set forth in Section 1(c), (g) and (h) above as if such amendments had
been in effect on April 17, 2009, no Event of Default (other than a Specified Default) shall
have occurred and be continuing.
5. Conditions Subsequent. This Amendment shall automatically be null and void and of
no further force and effect on April 25, 2009 (the “Termination Date”), unless prior to
such date (I) the Bankruptcy Court shall have entered one or more orders reasonably satisfactory in
form and substance to the Administrative Agent authorizing (A) this Amendment (it being understood
and agreed by the parties hereto that such approval is not required for this Amendment to become
effective, but will be sought by the Borrower solely for the avoidance of doubt), (B) the payment
by the Borrower to the Administrative Agent of all fees referred to herein or in that certain Fee
Letter (the “Fee Letter”) dated as of April 21, 2009, (C) the payment by the Borrower to
any Lenders of all fees referred to in any separate side letters (as such side letters may be
amended, the “Expense Side Letters”), and (D) the payment by the Borrower of the Amendment
Fees (as defined below), and (II) the Borrower shall have (A) paid to the Administrative Agent all
fees referred to herein or in the Fee Letter, (B) paid to each Participant Lender that has executed
and delivered a signature page hereto to the Administrative Agent no later than 5.00 p.m. (New York
City time) on April 22, 2009, an amendment fee in an amount equal to 20 basis points of the Tranche
A Total Commitment Usage, Tranche B Loans and Tranche C Loans of each such Participant Lender as of
the Effective Date (the “Amendment Fees”), (C) paid all invoiced expenses (including the
fees and expenses of counsel to the Administrative Agent) of the Administrative Agent incurred in
connection with the preparation, negotiation and execution of this Amendment and other matters
relating to the Loan Documents in accordance with Section 10.05 of the Credit Agreement, (D) paid
all invoiced expenses of the Lenders payable pursuant to any Expense Side Letters and (E) applied
$25,000,000 from one or more Incremental Borrowing Base Cash Collateral Accounts to the repayment
of Obligations in accordance with Section 2.19(b) of the Credit Agreement.
6. Release. To the fullest extent permitted by applicable law, in consideration of
the Agents’ and the execution of this Amendment by the Participant Lenders that executed and
delivered this Amendment (together with any such Participant Lender’s successors and assigns, the
“Amendment Participant Lenders”), the Borrower and the Guarantors each, on behalf of itself
and each of its successors and assigns (including, without limitation, any receiver or trustee,
collectively, the “Releasors”), does hereby forever release, discharge and acquit the
Agents, each Amendment Participant Lender and each of their respective parents, subsidiaries and
affiliate corporations or partnerships, and their respective officers, directors, partners,
trustees, shareholders, agents, attorneys and employees, and their respective successors, heirs and
assigns, in the case of each of the foregoing solely in their capacities as such (collectively, the
“Releasees”) of and from any and all claims, demands, liabilities, rights,
responsibilities, disputes, causes of action (whether at law or equity), indebtedness and
obligations (collectively, “Claims”), of every type, kind, nature, description or
character, and irrespective of how, why or by reason of what facts, whether such Claims have
heretofore arisen, are now existing or hereafter arise, or which could, might, or may be claimed to
exist, of whatever kind or name, whether known or unknown, suspected or unsuspected, liquidated or
unliquidated, each as though fully set forth herein at length, which in any way arise out of, are
connected with or in any way relate to actions or omissions which occurred on or prior to the date
hereof with respect to the Obligations, this Amendment, the Accommodation Agreement, the Credit
Agreement or any other Loan Document. This Section 6 shall survive (i) the expiration or
termination of the
Accommodation Period, of the Accommodation Agreement and of this Amendment (including due to
the occurrence of the First Termination Date or the Second Termination Date) and (ii) the
termination of the Credit Agreement, the payment in full of all Obligations and the termination of
all Commitments.
7. Miscellaneous.
(a) The Amendment Participant Lenders hereby waive any defaults (including any Automatic
Accommodation Termination Defaults or Accommodation Defaults) that may have occurred as a result of
the failure of the Borrower to (i) apply the aggregate amount held in all Incremental Borrowing
Base Cash Collateral Accounts to the repayment of Obligations pursuant to Section 3(m)(i) of the
Accommodation Agreement or (ii) satisfy the GM Transaction Termsheet Condition on or prior to April
17, 2009.
(b) Except to the extent hereby amended, each Loan Party hereby affirms that the terms of the
other Loan Documents (i) secure, and shall continue to secure, and (ii) guarantee, and shall
continue to guarantee, in each case, the Obligations (as defined in the Credit Agreement) and
acknowledges and agrees that each Loan Document is, and shall continue to be, in full force and
effect and is hereby ratified and affirmed in all respects.
(c) The Borrower agrees that its obligations set forth in Section 10.05 of the Credit
Agreement shall extend to the preparation, execution and delivery of this Amendment, including the
reasonable fees and disbursements of special counsel to the Administrative Agent and the Arrangers.
(d) No
Person other than the parties hereto and any other Lender, and, in the case of Section 6 hereof, the Releasees, shall have any rights hereunder or be entitled to rely on this Amendment,
and all third-party beneficiary rights (other than the rights of the
Releasees under Section 6
hereof and any other Lender) are hereby expressly disclaimed.
(e) The parties hereto hereby agree that Section 8 of the Credit Agreement shall apply to this
Amendment and each other Loan Document and all actions taken or not taken by the Administrative
Agent or any Lender contemplated hereby.
(f) Nothing in this Amendment shall be deemed, asserted or construed to impair or prejudice
the rights of the Administrative Agent and the Lenders to appear and be heard on any issue, or to
object to any relief sought, in the Bankruptcy Court, except to the extent that such actions would
constitute a breach of the Administrative Agent’s or any Participant Lender’s obligations under the
Accommodation Agreement.
(g) Any provision of this Amendment held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without affecting the validity, legality and enforceability of the
remaining provisions hereof, and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
(h) Section headings used herein are for convenience only and are not to affect the
construction of or be taken into consideration in interpreting this Amendment.
(i) 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 shall be deemed to be
an original and all of which taken together shall constitute but one and the same instrument. A
facsimile or .pdf copy of a counterpart signature page shall serve as the functional equivalent of
a manually executed copy for all purposes.
(j) THIS AMENDMENT SHALL IN ALL RESPECTS BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK AND (TO THE EXTENT APPLICABLE) THE BANKRUPTCY CODE.
(k) EACH OF THE BORROWER, THE GUARANTORS, THE AGENTS AND EACH LENDER HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AMENDMENT.
[SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto caused this Amendment to be duly executed as of the day
and the year first written.
| BORROWER DELPHI CORPORATION |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Vice President and Chief Financial Officer | |||
| GUARANTORS: DELPHI AUTOMOTIVE SYSTEMS (HOLDING), INC., a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | President | |||
| DELPHI AUTOMOTIVE SYSTEMS GLOBAL (HOLDING), INC., a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | President | |||
| DELPHI AUTOMOTIVE SYSTEMS LLC, a Delaware limited liability company |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Vice President & Chief Financial Officer | |||
| DELPHI AUTOMOTIVE SYSTEMS RISK MANAGEMENT CORP., a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Vice President & Treasurer | |||
| DELPHI FOREIGN SALES CORPORATION, a Virgin Islands corporation |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Controller | |||
| DELPHI INTERNATIONAL HOLDINGS CORP., a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | President | |||
| DELPHI LIQUIDATION HOLDING COMPANY, a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | President | |||
| DELPHI LLC, a Delaware limited liability company |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | President | |||
| DELPHI NY HOLDING CORPORATION, a New York corporation |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | President | |||
| ASEC MANUFACTURING, a Delaware general partnership |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Treasurer | |||
| ASEC SALES, a Delaware general partnership |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Treasurer | |||
| DELCO ELECTRONICS OVERSEAS CORPORATION, a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Assistant Treasurer | |||
| DELPHI AUTOMOTIVE SYSTEMS KOREA, INC., a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Chief Executive Officer & President | |||
| DELPHI AUTOMOTIVE SYSTEMS HUMAN RESOURCES LLC, a Delaware limited liability company |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Vice President & Treasurer | |||
| DELPHI AUTOMOTIVE SYSTEMS INTERNATIONAL, INC., a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Treasurer | |||
| DELPHI AUTOMOTIVE SYSTEMS OVERSEAS CORPORATION, a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Treasurer | |||
| DELPHI AUTOMOTIVE SYSTEMS SERVICES LLC, a Delaware limited liability company |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Treasurer | |||
| DELPHI AUTOMOTIVE SYSTEMS TENNESSEE, INC., a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Treasurer | |||
| DELPHI AUTOMOTIVE SYSTEMS THAILAND, INC., a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Treasurer | |||
| DELPHI CONNECTION SYSTEMS, a California corporation |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Treasurer | |||
| DELPHI ELECTRONICS (HOLDING) LLC, a Delaware limited liability company |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Assistant Treasurer | |||
| DELPHI INTERNATIONAL SERVICES, INC., a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Chief Financial Officer & Treasurer | |||
| DELPHI MECHATRONIC SYSTEMS, INC., a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Treasurer | |||
| DELPHI SERVICES HOLDING CORPORATION, a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Treasurer | |||
| EXHAUST SYSTEMS CORPORATION, a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Assistant Treasurer | |||
| ASPIRE, INC., a Michigan corporation |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
| DELPHI CHINA LLC, a Delaware limited liability company |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Chief Tax Officer | |||
| DELPHI DIESEL SYSTEMS CORP., a Delaware corporation |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Chief Tax Officer | |||
| DELPHI INTEGRATED SERVICE SOLUTIONS, INC., a Michigan corporation |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
| SPECIALTY ELECTRONICS, INC., a South Carolina corporation |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Chief Tax Officer | |||
| SPECIALTY ELECTRONICS INTERNATIONAL LTD., a Virgin Islands corporation |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Chief Tax Officer | |||
| PACKARD XXXXXX INTERCONNECT COMPANY, a Delaware corporation |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Chief Tax Officer | |||
| ENVIRONMENTAL CATALYSTS, LLC, a Delaware limited liability company |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Chief Tax Officer | |||
| DELPHI MEDICAL SYSTEMS COLORADO CORPORATION, a Colorado corporation |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Assistant Treasurer | |||
| DELPHI MEDICAL SYSTEMS CORPORATION, a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Assistant Treasurer | |||
| DELPHI MEDICAL SYSTEMS TEXAS CORPORATION, a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Assistant Treasurer | |||
| DELPHI TECHNOLOGIES, INC., a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Vice President and Treasurer | |||
| DREAL, INC., a Delaware corporation |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Chief Tax Officer | |||
Signature page for the Second
Supplemental Second Amendment to the Accommodation Agreement, dated
as of April 22, 2009 among Delphi Corporation and the lenders party thereto
| Name of Lender: |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
