Contract
EXHIBIT 99.2
REVOLVING CREDIT AMENDMENT AND RESTATEMENT AGREEMENT dated as of
September 16, 2009, among AMERICAN AXLE & MANUFACTURING, INC. (the
“Borrower”), AMERICAN AXLE & MANUFACTURING HOLDINGS, INC. (the
“Parent”), the LENDERS party hereto and JPMORGAN CHASE BANK, N.A.,
as Administrative Agent (the “Agent”), under the Credit Agreement
dated as of January 4, 2004, as amended and restated as of November 7,
2008 (as in effect on the date hereof, the “Existing Credit
Agreement”), among the Borrower, the Parent, the lenders party thereto
and the Agent.
WHEREAS the Borrower has requested, and the undersigned Lenders and the Agent have agreed,
upon the terms and subject to the conditions set forth herein, that the Existing Credit Agreement
be amended and restated as provided herein.
NOW, THEREFORE, the Borrower, the Parent, the undersigned Lenders and the Agent hereby agree
as follows:
SECTION 1. Defined Terms. Capitalized terms used but not defined herein shall have
the meanings assigned to such terms in the Amended Credit Agreement (as defined in Section 4
below).
SECTION 2. Restatement Effective Date. (a) The amendment and restatement of the
Existing Credit Agreement provided for in Section 4 shall be consummated at a closing to be held on
the Restatement Effective Date at the offices of Cravath, Swaine & Xxxxx LLP.
(b) The “Restatement Effective Date” shall be a date, not later than September 16,
2009, as of which all the conditions set forth or referred to in Section 6 hereof shall have been
satisfied. This Agreement shall terminate at 5:00 p.m., New York City time, on September 16, 2009
if the Restatement Effective Date shall not have occurred at or prior to such time.
SECTION 3. Conversion of Class B Commitments. On the Restatement Effective Date, each
Class B Lender identified on Schedule 1 will become a Class A Lender and each Class B Commitment of
such Class B Lender shall become a Class A Commitment and the Borrower shall take such actions as
the Agent reasonably requests to give effect thereto. Immediately after giving effect to the
amendment and restatement of the Existing Credit Agreement on the Restatement Effective Date, the
amount of each Class B Commitment that becomes a Class A Commitment pursuant to this Section shall
be reduced by 25% of the amount thereof immediately before giving effect to such reduction.
SECTION 4. Amendment and Restatement of the Existing Credit Agreement. (a) Effective
on the Restatement Effective Date, the Existing Credit Agreement is hereby amended and restated to
read in its entirety as set forth in Exhibit A hereto (the “Amended Credit Agreement”).
From and after the effectiveness of such
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amendment and restatement, the terms “Agreement”, “this Agreement”, “herein”, “hereinafter”,
“hereto”, “hereof” and words of similar import, as used in the Amended Credit Agreement, shall,
unless the context otherwise requires, refer to the Amended Credit Agreement, and references to the
Existing Credit Agreement in the other Loan Documents shall be deemed to refer to the Amended
Credit Agreement.
(b) Subject to Section 3 above, all “Commitments” as defined in, and in effect under, the
Existing Credit Agreement on the Restatement Effective Date shall continue in effect under the
Amended Credit Agreement, and all “Loans” as defined in, and outstanding under, the Existing Credit
Agreement on the Restatement Effective Date shall continue to be outstanding under the Amended
Credit Agreement, and on and after the Restatement Effective Date the terms of the Amended Credit
Agreement will govern the rights and obligations of the Borrower, the Parent, the Lenders and the
Agent with respect thereto.
(c) The amendment and restatement of the Existing Credit Agreement as contemplated hereby
shall not be construed to discharge or otherwise affect any obligations of the Borrower or Parent
accrued or otherwise owing under the Existing Credit Agreement that have not been paid, it being
understood that such obligations will constitute obligations under the Amended Credit Agreement.
SECTION 5. Amendment Fee. The Borrower agrees to pay to the Agent for the account of
(a) each Class A Lender that executes and delivers a counterpart of this Agreement to the Agent’s
counsel prior to 1:00 p.m. (New York City time) on September 15, 2009 (or such later date as the
Borrower and the Agent shall agree) (such date, the “Amendment Date”), a fee equal to 0.50%
and (b) each Class B Lender that executes and delivers a counterpart of this Agreement to the
Agent’s counsel prior to 1:00 p.m. (New York City time) on the Amendment Date, a fee equal to 0.25%
(or 2.00%, in the case of any Class B Lender identified on Schedule 1), in each case, of the amount
of the Class A Commitment or Class B Commitment, as applicable, as of the Restatement Effective
Date (determined after giving effect to any reduction of a Commitment pursuant to Section 3 above).
Such fees shall be due and payable on the Restatement Effective Date.
SECTION 6. Conditions. The effectiveness of the amendment and restatement of the
Existing Credit Agreement pursuant to Section 4 of this Agreement shall be subject to the
satisfaction (or waiver) of the following conditions precedent:
(a) The Agent (or its counsel) shall have received from each of the Borrower, the Parent,
each Class B Lender identified on Schedule 1 hereto and the Required Lenders under (and as defined
in) the Existing Credit Agreement either a counterpart of this Agreement signed on behalf of such
party or written evidence satisfactory to the Agent (which may include facsimile or other
electronic transmission of a signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement.
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(b) The Agent (or its counsel) shall have received from each Subsidiary, if any, that is a
Subsidiary Loan Party as of the Restatement Effective Date, and is not
already a Guarantor, a supplement to the Guarantee Agreement, in the form specified therein,
duly executed and delivered on behalf of such Person.
(c) The Agent shall have received a favorable written opinion (addressed to the Agent and the
Lenders and dated the Restatement Effective Date) of each of (i) Xxxxxxx X. Xxxxxxx, General
Counsel of the Borrower, substantially in the form of Exhibit B-1 hereto, and (ii) Shearman &
Sterling LLP, counsel to the Loan Parties, substantially in the form of Exhibit B-2 hereto, in each
case covering such other matters relating to the Loan Parties, the Loan Documents or the
Restatement Transactions as the Agent or the Required Lenders shall reasonably request. The Parent
and the Borrower hereby request such counsel to deliver such opinions.
(d) The Agent shall have received such documents and certificates as the Agent or its counsel
may reasonably request relating to the organization, existence and good standing of the Loan
Parties, the authorization of the Restatement Transactions and any other legal matters relating to
the Loan Parties, the Loan Documents or the Restatement Transactions, all in form and substance
satisfactory to the Agent and its counsel.
(e) The representations and warranties of the Loan Parties set forth in the Loan Documents
shall be true and correct in all material respects as of the Restatement Effective Date, no Default
shall have occurred and be continuing as of the Restatement Effective Date and the Agent shall have
received a certificate, dated the Restatement Effective Date and signed by the President, the Chief
Executive Officer, a Vice President or a Financial Officer of each of the Parent and the Borrower,
confirming the foregoing.
(f) The Agent shall have received (i) all fees and other amounts due and payable on or prior
to the Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Loan
Documents, and (ii) if any Class B Lender is identified on Schedule 1 hereto, all accrued and
unpaid interest under the Existing Credit Agreement.
(g) The Collateral Requirement shall have been satisfied. The Agent shall have received the
results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the
Loan Parties in the jurisdictions contemplated by the Perfection Schedule (updated as provided in
the Collateral Agreement) and copies of the financing statements (or similar documents) disclosed
by such search and evidence reasonably satisfactory to the Agent that the Liens indicated by such
financing statements (or similar documents) are permitted by Section 6.02 of the Amended Credit
Agreement or have been released.
(h) The Agent shall have received evidence that the insurance required by the Loan Documents
is in effect.
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(i) The Lenders shall have received all documentation and other information required by bank
regulatory authorities under applicable “know your
customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(j) The Term Loan Amendment and Restatement Agreement dated as of the date hereof relating to
the Term Loan Agreement shall become effective on the Restatement Effective Date.
(k) An amended and restated Collateral Agreement substantially in the form of Exhibit C
hereto shall be executed and delivered by the parties thereto, and the parties thereto shall have
executed and delivered any amendments to the Security Documents as shall be reasonably requested by
the Collateral Agent to give effect to the Restatement Transactions.
(l) (i) The GM Second Lien Documents, in the forms attached hereto as Exhibit D, as well as
the GM Intercreditor Agreement, shall have been executed and delivered by the parties thereto prior
to or substantially concurrently with the effectiveness of this Agreement, (ii) the parties thereto
shall have executed and delivered the GM Access and Security Agreement in the form attached hereto
as Exhibit E prior to or substantially concurrently with the effectiveness of this Agreement, (iii)
the parties thereto shall have executed and delivered agreements (including the GM Settlement
Agreement), in the forms delivered to the Agent and the Lenders prior to the execution and delivery
of this Agreement, relating to certain commercial transactions between the Borrower and GM, copies
of such executed agreements shall have been delivered to the Agent and the Agent shall be satisfied
that such agreements are effective and that any payments to be made to the Borrower thereunder upon
the effectiveness thereof are being made substantially concurrently with the effectiveness of this
Agreement and (iv) the Agent shall have received a certificate, dated the Restatement Effective
Date and signed by the President, the Chief Executive Officer, a Vice President or a Financial
Officer of each of the Parent and the Borrower, to the effect that true, correct and complete
copies of all documents and agreements referred to in clauses (i), (ii) and (iii) of this
paragraph, and any and all documents and agreements relating thereto, have been delivered to the
Agent.
The Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such
notice shall be conclusive and binding. Notwithstanding the foregoing, the amendment and
restatement of the Existing Credit Agreement as contemplated hereby shall not become effective
unless each of the foregoing conditions is satisfied (or waived) at or prior to 5:00 p.m., New York
City time, on September 16, 2009 (and, in the event such conditions are not so satisfied or waived,
the Existing Credit Agreement shall remain in effect without giving effect to any provisions of
this Agreement).
SECTION 7. Effectiveness; Counterparts; Amendments. This Agreement shall become
effective when copies hereof which, when taken together, bear the signatures of the Borrower, the
Parent, the Agent, each Class B Lender identified on Schedule 1 hereto and the Required Lenders
shall have been received by the Agent. This Agreement may not be amended nor may any provision
hereof be waived except pursuant
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to a writing signed by the Borrower, the Parent, the Agent, each
Class B Lender
identified on Schedule 1 hereto and the Required Lenders. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original but all of which when taken
together shall constitute a single contract. Delivery of an executed counterpart of a signature
page of this Agreement by facsimile or other electronic transmission shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 8. No Novation. This Agreement shall not extinguish any obligations
outstanding under the Existing Credit Agreement. This Agreement shall be a Loan Document for all
purposes.
SECTION 9. Ability to Cure. After the Restatement Effective Date, (i) if the
Administrative Agent and the Borrower jointly identify any defect or ambiguity in any provision of
the Loan Documents, then the Required Lenders hereby agree that the Administrative Agent and the
Borrower shall be permitted to amend such provision to cure such defect or ambiguity and such
amendment shall become effective without any further action or consent of any other party to any
Loan Document if the same is not objected to in writing by the Required Lenders within five (5)
Business Days following receipt of notice thereof and (ii) if the Administrative Agent and the
Borrower jointly determine that it is desirable that a provision of the Loan Document be amended or
waived solely for the purpose of complying with local law, then the Required Lenders hereby agree
that the Administrative Agent and the Borrower shall be permitted to amend or waive such provision
to the extent necessary to so comply and such amendment or waiver shall become effective without
any further action or consent of any party to any Loan Document if the same is not objected to in
writing by the Required Lenders within five (5) Business Days following receipt of notice thereof;
provided, however, that this Section shall not be construed to permit any amendment or waiver that,
pursuant to the terms of Section 9.02 of the Amended Credit Agreement, would require the consent of
any party other than the Loan Parties, the Administrative Agent and the Required Lenders, unless
such consent is obtained.
SECTION 10. Notices. All notices hereunder shall be given in accordance with the
provisions of Section 9.01 of the Amended Credit Agreement.
SECTION 11. Applicable Law; Waiver of Jury Trial. (A) THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(B) EACH PARTY HERETO HEREBY AGREES AS SET FORTH IN SECTION 9.10 OF THE AMENDED CREDIT
AGREEMENT AS IF SUCH SECTION WERE SET FORTH IN FULL HEREIN.
SECTION 12. Headings. The Section headings used herein are for convenience of
reference only, are not part of this Agreement and are not to affect the construction of, or to be
taken into consideration in interpreting, this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first written above.
| AMERICAN AXLE & MANUFACTURING, INC., |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Treasurer | |||
| AMERICAN AXLE & MANUFACTURING HOLDINGS, INC., |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Treasurer | |||
[Signature Page to the Revolving Credit Amendment and Restatement Agreement]
| JPMORGAN CHASE BANK, N.A., as Administrative Agent, |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Managing Director | |||
[Signature Page to the Revolving Credit Amendment and Restatement Agreement]
LENDER SIGNATURE PAGES ON FILE WITH THE ADMINISTRATIVE AGENT
EXHIBITS AND SCHEDULES
Schedules
Schedule 1
|
Commitments |
Exhibits
Exhibit A
|
Amended and Restated Credit Agreement | |
Exhibit B-1
|
Form of Opinion of Xxxxxxx X. Xxxxxxx, General Counsel | |
Exhibit B-2
|
Form of Opinion of Shearman & Sterling LLP | |
Exhibit C
|
Amended and Restated Collateral Agreement | |
Exhibit D
|
GM Second Lien Documents | |
Exhibit E
|
GM Access and Security Agreement |
