EXHIBIT 99.2
EXECUTION COPY
THIRD AMENDMENT
This THIRD AMENDMENT (this "Agreement"), dated as of June 10,
2003, is entered into by and among X.X. TOWER CORPORATION, a Michigan
corporation (the "Company"), TOWER AUTOMOTIVE EUROPE B.V., a corporation,
organized under the laws of the Netherlands (the "Dutch Parent"), TOWER
AUTOMOTIVE FINANCE B.V, a corporation organized under the laws of the
Netherlands (the "Finance Subsidiary" and, collectively, with the Company and
the Dutch Parent, the "Borrowers"), the parties named as Guarantors on the
signature pages hereto (collectively, the "Guarantors"), the several financial
institutions from time to time party to this Agreement (collectively, the
"Lenders"; individually, a "Lender"), BANK OF AMERICA, N.A., as administrative
agent for the Lenders (in such capacity, the "Administrative Agent"), JPMorgan
Chase Bank (formerly known as The Chase Manhattan Bank), as syndication agent,
and The Bank of Nova Scotia, Comerica Bank, U.S. Bank National Association and
Bank One, NA (as successor to Bank One, Michigan), as co-agents. Terms used
herein and not otherwise defined herein shall have the same meanings as
specified in the Credit Agreement (as defined below).
RECITALS:
A. The Borrowers, the Lenders and the Administrative Agent
have heretofore entered into that Credit Agreement dated as of July 25, 2000 (as
heretofore and hereafter amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement").
B. (i) The Company wishes to issue not less than $250,000,000
of senior unsecured notes due 2013 pursuant to the terms and conditions
described in that certain Offering Memorandum dated June 6, 2003 (the "Offering
Memorandum") (together with all "exchange notes" (as described in the Offering
Memorandum) issued in exchange therefor, the "New Notes"), (ii) the Parent and
the Guarantors wish to guarantee the obligations of the Company with respect to
the New Notes and (iii) the Company wishes to make dividends to the Parent in an
aggregate amount sufficient for the Parent to redeem in their entirety all of
its outstanding 5.0% Convertible Subordinated Notes due August, 2004 (the
"Converts") at a redemption price of not more than 100.714% plus fees and
expenses incurred in connection therewith (such redemption being hereinafter
referred to as the "Redemption").
C. The Borrowers wish, and the Lenders signatory hereto and
the Administrative Agent are willing, subject to the terms and conditions set
forth herein, to amend the Credit Agreement and to provide such consents as are
necessary or desirable to, among other things, (i) permit the Company to issue
the New Notes pursuant to the terms and conditions described in the Offering
Memorandum, (ii) permit the Guarantors to guarantee the Company's obligations
with respect to the New Notes, (iii) permit the Company to make dividends to the
Parent for the purpose of consummating the Redemption, (iv) provide for a
permanent reduction of the Revolving Commitment by at least $240,000,000, (v)
permit the Company to issue additional unsecured Indebtedness for the purpose of
financing the Redemption, (vi) modify the minimum permitted Interest Coverage
Ratio and the maximum permitted Leverage Ratio, (vii) reclassify $115,000,000 of
outstanding Revolving Loans as Term A Loans and (viii) require the Parent, the
Company and the Restricted Subsidiaries to grant liens on and security interests
in certain of their properties to secure certain portions of the Obligations.
NOW, THEREFORE, in consideration of the recitals herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Amendments. Subject to the satisfaction (or waiver) of each
of the conditions set forth in Paragraph 4 of this Agreement, the Credit
Agreement is hereby amended as follows (unless otherwise specified, article,
section and schedule references used herein shall mean and refer to articles,
sections and schedules of the Credit Agreement):
(a) Section 1.1 is amended by deleting in their entirety each
of the definitions of "Applicable Commitment Fee", "Interest Coverage
Ratio", "Leverage Ratio", "Scheduled Term A Repayments," "Term A
Commitment" and "Total Revolving Commitment Amount" and to replace such
definitions, respectively, with the following definitions:
"`Applicable Commitment Fee' means 0.50%.
`Interest Coverage Ratio' for any Reference Period
means the ratio of (x) EBITDA for such period to (y) the consolidated
interest expenses (excluding amortization of deferred financing costs,
any interest expense on deferred compensation arrangements, original
issue discount and, to the extent otherwise included therein, all
interest expenses of the Parent with respect to the Trust Preferred) of
the Parent, the Company and the Restricted Subsidiaries for such
period.
`Leverage Ratio' for any Reference Period means the
ratio of (x) Consolidated Debt of the Parent, the Company and the
Restricted Subsidiaries on the last day of such period (excluding, to
the extent otherwise included therein, Indebtedness with respect to the
Trust Preferred) to (y) EBITDA for such period.
`Scheduled Term A Repayments' mean, with respect to
the principal payments on the Term A Loans for each date set forth
below, the amount set forth opposite thereto, as reduced from time to
time pursuant to Section 2.6:
Date Repayment
---- ---------
3/31/05 $12,500,000
6/30/05 $17,500,000
9/30/05 $23,750,000
12/31/05 $23,750,000
3/31/06 $23,750,000
6/30/06 $0
7/14/06 $138,750,000
`Term A Commitment' means, with respect to any Term A
Lender, the principal amount set forth opposite such Lender's name on
Schedule 2.1 hereto or in any Assignment and Assumption Agreement as
such Lender's Term A Commitment, as such commitment may be adjusted
from time to time pursuant to this Agreement, and "Term A Commitments"
means such commitments collectively, which commitments equal
$240,000,000 as of the
Third Amendment Effective Date.
`Total Revolving Commitment Amount' means Three
Hundred Sixty Million Dollars ($360,000,000), as such amount may be
reduced and reinstated from time to time pursuant to Section 2.5,
Section 2.7(a) or Section 2.15.2(d)."
(b) Section 1.1 is hereby amended to add the following
definitions, each in their appropriate alphabetical order:
"`Alternative Financing' means Indebtedness of the
Company or the Parent that (a) is unsecured, (b) has no principal
amortization or other principal payments due or potentially due and
payable prior to December 31, 2006 (other than following the
occurrence of a default thereunder or, subject to the prior payment of
the Obligations or prior approval of the Required Lenders, in
connection with an asset sale or Change of Control), (c) is on terms
substantially similar to the terms of the New Notes or the Converts or
is on such other terms as may be acceptable to the Administrative
Agent in its reasonable discretion, (d) is incurred at a time during
which any Converts remain outstanding, (e) the proceeds of which are
used to fund a redemption of the Converts or, in the case of
Indebtedness of the Company, the Company shall effect a dividend to
the Parent in an amount equal to the net proceeds thereof to permit
the Parent to redeem, and the Parent shall in fact redeem, the
Converts for consideration equal to or greater than such amount
(provided that the Company shall retain any proceeds in excess of the
amount required to redeem the Converts in full for application to the
Obligations pursuant to the last sentence of Section
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2.7(a)) and (f) is incurred at a time which no Default or Event of
Default exists or is continuing or will exist upon the incurrence
thereof.
`Blocked Amount' means an amount equal to
$200,000,000.
`Converts' means the 5.0% Convertible Subordinated
Notes due August, 2004 issued by the Parent.
`Euro Indenture' means that certain Euro Indenture
dated as of July 25, 2000 among the Company, the Parent, the subsidiary
guarantors from time to time party thereto and United States Trust
Company of
New York, as trustee, pursuant to which the Company issued
the Euros.
`Euros' means the 9.25% Senior Notes due 2010 issued
by the Company pursuant to the Euro Indenture.
`New Note Offering Memorandum' means that certain
Offering Memorandum dated June 6, 2003 with respect to the Company's
issuance of the New Notes.
`New Notes' means those certain senior unsecured
notes due 2013 issued by the Company pursuant to the terms and
conditions described in the New Note Offering Memorandum and any
"exchange notes" (as described in the New Note Offering Memorandum)
issued in exchange therefor.
`Permanent LCs' means those certain Standby Letters
of Credit listed on Schedule 1 to the
Third Amendment which are
renewable automatically by their terms.
`Principal Collateral' has the meaning specified in
Section 6.14.
`Redemption Increase Conditions' means the following
conditions: (i) subject to Permitted Liens, the Company and its
Domestic Subsidiaries shall have granted to the Administrative Agent
for the benefit of the Lenders (including their Affiliates party from
time to time party to any Specified Swap Contract with the Company or
any of its Affiliates) liens on and security interests in substantially
all of their respective properties which do not constitute Principal
Collateral, including, without limitation, all of the Company's and its
Domestic Subsidiaries' accounts receivable (to the extent not sold by
the Company into a Permitted Receivables Purchase Facility), inventory
and general intangibles, the Company's investment in its Receivables
Subsidiary (including the outstanding capital stock of such Receivables
Subsidiary and all Indebtedness owed by such Receivables Subsidiary to
the Company or its other Domestic Subsidiaries), 65% of the outstanding
equity interests of each Foreign Subsidiary directly owned by the
Company or any Domestic Subsidiary, and the Company's and its Domestic
Subsidiaries' directly owned interests in domestic and foreign joint
ventures to the extent permitted under the organizational documents of
such ventures and, to the extent necessary, consents are otherwise
obtained by the Company or its Subsidiaries), as security for the
principal balance of the Revolving Loans from time to time outstanding
and related interest and fees and all other Obligations not secured by
the Principal Collateral (including, without limitation, Obligations
with respect to Specified Swap Contracts and each Guarantor's
obligations under the Guaranty), (ii) such liens and security interests
shall have been created and are perfected pursuant to security and
perfection documentation as may be reasonably acceptable to the
Administrative Agent and (iii) the Company shall have delivered or
caused to be delivered such certificates, legal opinions (including,
without limitation, customary opinions concluding that no conflict
would occur and no liens would arise with respect to certain material
contracts) and other customary documentation as may be reasonably
requested by, and which are in form and substance reasonably acceptable
to, the Administrative Agent.
`
Third Amendment' means that certain
Third Amendment
to this Agreement dated as of June 10, 2003.
`
Third Amendment Effective Date' means June 13, 2003.
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`Trust' means Tower Automotive Capital Trust, a
Delaware statutory business trust.
`Trust Preferred' means the 6 3/4% convertible
preferred securities due June 18, 2018 issued by the Trust."
(c) The definition of "Change of Control" in Section 1.1 is
amended to delete the word "or" occurring immediately prior to clause (iii)
thereof, to replace it with a comma, and to add the following to the end of
such definition:
"or (iv) any `Change of Control' as defined in the Euro
Indenture or the New Note Offering Memorandum.
(d) The first sentence of the definition of "Applicable Letter
of Credit Fee Rate" in Section 1.1 is amended and restated in its entirety
as follows:
"`Applicable Letter of Credit Fee Rate' at any time means the
relevant fee rate for Letters of Credit as determined from time to time
which rate equals the Applicable Margin for Offshore Rate Loans as
specified in the Pricing Grid from time to time; provided that (i) the
Applicable Letter of Credit Fee Rate for the period beginning on the
Third Amendment Effective Date and ending on the date the
Administrative Agent receives the first financial statements and
Compliance Certificate required to be delivered after the
Third
Amendment Effective Date pursuant to Section 6.1(a) and Section 6.2(b)
respectively shall be the Applicable Margin for Offshore Rate Loans
corresponding to Level II on the Pricing Grid, and (ii) in the event
the Administrative Agent shall not have received when due any financial
statement or Compliance Certificate required to be delivered under
Section 6.1(a) and Section 6.2(b) respectively, the Applicable Letter
of Credit Fee Rate shall be the Applicable Margin for Offshore Rate
Loans corresponding to Level IV on the Pricing Grid until the
Administrative Agent has received all such financial statements and
Compliance Certificates."
(e) The definition of "Applicable Margin" in Section 1.1 is
amended to delete the reference to Level V of the Pricing Grid in such
definition and to replace such reference with a reference to Level IV of
the Pricing Grid and to delete the proviso at the end of the first sentence
of such definition and to replace it with the following:
"provided that the Applicable Margin for the period beginning on the
Third Amendment Effective Date and ending on the date the
Administrative Agent receives the first financial statements and
Compliance Certificate required to be delivered after the Third
Amendment Effective Date pursuant to Section 6.1(a) and Section 6.2(b)
respectively shall be the Applicable Margin corresponding to Level II
on the Pricing Grid."
(f) The definition of "Eligible Assignee" in Section 1.1 is
amended to delete clause (d) thereof in its entirety and replace it with
the following:
"(d) any other entity approved by the Company and the
Administrative Agent; provided that the Company's approval shall not be
unreasonably withheld or delayed and the Company's approval shall not
be required if an Event of Default exists under Section 8.1(a), Section
8.1(c) with respect to the Company's noncompliance with Section 7.15,
Section 8.1(f) or Section 8.1(g)."
(g) Section 1.1 is amended to delete in their entirety the
definitions of "Offshore Currency Sublimit" and "Permitted Additional
Indebtedness" from such section.
(h) Section 2.1(a) is amended to delete in its entirety the
last sentence of such section.
(i) Section 2.5 is amended to insert the following sentence
at the end of such section:
"Any permanent reduction of the Revolving Commitments pursuant to this
Section 2.5 shall be accompanied by a corresponding permanent reduction
in the Total Revolving Commitment Amount in the
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amount of such permanent reduction, and in the case of the termination
of the Revolving Commitments, the Total Revolving Commitment Amount
shall be reduced to zero"
(j) Section 2.7(a) is amended to insert the following at the
end of such section:
"In addition, immediately upon the Company's receipt of the
proceeds from its issuance of the New Notes, the Borrowers shall
jointly and severally repay the Revolving Loans in an amount equal to
fifty percent of the amount, if any, by which the aggregate face amount
of the New Notes exceeds $300,000,000 (or such lesser amount which
results in payment in full of all outstanding Revolving Loans). On the
Third Amendment Effective Date, the Revolving Commitments of the
Revolving Lenders shall be (i) provisionally reduced ratably by an
amount equal to the Blocked Amount, with a corresponding provisional
reduction in the Total Revolving Commitment Amount by the Blocked
Amount and (ii) in addition, permanently reduced ratably by fifty
percent of the amount, if any, by which the aggregate face amount of
the New Notes exceeds $300,000,000, with a corresponding permanent
reduction in the Total Revolving Commitment Amount by such amount;
provided, however, that if and when the Redemption Increase Conditions
are satisfied prior to the redemption in their entirety or other
satisfaction in full of the Converts, then, subject to the provisions
of Section 7.7(c), the Revolving Commitments of the Revolving Lenders
shall thereupon be reinstated ratably in the aggregate amount of the
Blocked Amount, with a corresponding reinstatement in the Total
Revolving Commitment Amount by the Blocked Amount (and the Company
shall be obligated to satisfy the Redemption Increase Conditions in
order to utilize the availability resulting from such reinstated
amount). If, following such reinstatement of Revolving Commitments and
Total Revolving Commitment Amount, the Parent redeems or otherwise
repays or satisfies the outstanding Converts in their entirety and a
portion of such reinstated amount of the Revolving Commitments remains
unused, then the Revolving Commitments of the Revolving Lenders shall
be thereupon permanently reduced ratably in the aggregate amount of
such unused portion, with a corresponding permanent reduction in the
Total Revolving Commitment Amount by such amount. If the Redemption
Increase Conditions have not been satisfied prior to the earlier to
occur of the Parent or the Company entering into an Alternative
Financing or the redemption in their entirety or other satisfaction in
full of the Converts, then the provisional reduction of the Revolving
Commitments of the Revolving Lenders, and the corresponding provisional
reduction of the Total Revolving Commitment Amount, pursuant to this
Section 2.7(a), shall thereupon become permanent. If the Parent or the
Company enters into an Alternative Financing, then to the extent there
are any proceeds of the Alternative Financing in excess of the
aggregate amount which would be required to consummate a redemption in
full of the outstanding Converts, the Borrowers shall thereupon ratably
repay the outstanding Revolving Loans by the amount of such excess (or
such lesser amount as may be required to repay the then outstanding
Revolving Loans in full), and the Revolving Commitments of the
Revolving Lenders shall be thereupon permanently reduced ratably by the
amount of such repayment of the outstanding Revolving Loans, with a
corresponding permanent reduction in the Total Revolving Commitment
Amount by such repayment amount; provided that if any excess remains
after the outstanding Revolving Loans are repaid in full, the Borrowers
shall repay the Term A Loans by such remaining amount ratably in the
order of maturity."
(k) Section 2.9 is hereby amended to be re-titled "Fees", to
move the existing paragraph titled "Commitment Fees" into a newly-created
subsection (a) thereof, to insert the parenthetical "(in effect as of such
applicable date, but without giving effect to the provisional reduction of
the Total Revolving Commitment Amount pursuant to Section 2.7(a) unless and
to the extent such reduction becomes permanent pursuant to the terms of
such section)" immediately after the occurrence of the words "Total
Revolving Commitment Amount" in such newly-created subsection (a) and to
add the following subsection (b) thereto:
"(b) Facility Fee. In the event that the Redemption Increase
Conditions are not satisfied prior to October 6, 2003, then, on such
date, and on each 90th day thereafter until such time as the Redemption
Increase Conditions shall have been satisfied or the Revolving
Commitments shall have been permanently reduced to zero, the Borrowers
shall jointly and severally pay to the Administrative Agent, for the
ratable account of the Lenders, a facility fee in an amount equal to
0.50% multiplied by the aggregate Revolving Commitments of the
Revolving Lenders (in effect as of such applicable date, but without
giving effect to the provisional reduction of the Revolving Commitments
pursuant to Section 2.7(a) unless and to the extent such reduction
becomes permanent pursuant to the terms of such section)."
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(l) Section 2.14(a) is amended to delete the amount
"$100,000,000" which appears in clause (y) of such section and to replace
such amount with the amount "$75,000,000."
(m) Section 2.15.2(d) is amended to insert the following
sentence at the end of such section:
"If any of the Permanent LCs expire or are terminated without being
automatically or otherwise renewed pursuant to the foregoing sentence,
the Revolving Commitments of the Revolving Lenders shall be permanently
reduced ratably by the face amount of each such expiring or terminated
Permanent LC (with a corresponding permanent reduction in the Total
Revolving Commitment Amount by such amount)."
(n) Article V is amended to add a new Section 5.21 to such
article as follows:
"5.21 Tax Shelter Regulations. The Borrowers do not intend to
treat the Loans and Letters of Credit as being a "reportable
transaction" (within the meaning of Treasury Regulation Section
1.6011-4). In the event any Borrower determines to take any action
inconsistent with such intention, it will promptly notify the
Administrative Agent thereof. If a Borrower so notifies the
Administrative Agent, the Borrowers acknowledge that one or more of the
Lenders may treat its Loans and Letters of Credit (and interests
therein) as part of a transaction that is subject to Treasury
Regulation Section 301.6112-1, and such Lender or Lenders, as
applicable, will maintain the lists and other records required by such
Treasury Regulation."
(o) Article VI is amended to add a new Section 6.14 and
Section 6.15 to such article as follows:
"6.14 Principal Collateral. As soon as practicable after the
Third Amendment Effective Date, but in no event later than 60 days
thereafter (as such date may be extended by the Administrative Agent in
its sole discretion), the Company shall (i) grant, and shall cause the
Domestic Subsidiaries to grant, to the Administrative Agent, for the
benefit of the Lenders, senior perfected liens and security interests
in substantially all of the `Principal Property' (as defined in the
Euro Indenture), equity interests of the Restricted Subsidiaries (as
defined in the Euro Indenture) and evidences of indebtedness of such
Subsidiaries to secure, and only secure, the outstanding principal
balance of the Term A Loans and the Letter of Credit Obligations
relating to the Permanent LCs (including all reimbursement obligations
with respect thereto and all Letter of Credit Borrowings and deemed
Borrowings of Revolving Loans under Section 2.15.3 with respect
thereto) and (ii) cause the Parent to grant to the Administrative
Agent, for the benefit of the Lenders, senior perfected liens and
security interests in all of the capital stock of the Company from time
to time outstanding and owned by the Parent to secure all of the
Parent's obligations under the Guaranty (all such property of the
Company, such Subsidiaries and the Parent in which liens and security
interests are granted pursuant to this section, being referred to
herein, collectively, as the `Principal Collateral'). Such security
interests and liens referred to in the foregoing sentence shall be
subject to such security documentation and related closing documents as
may be reasonably satisfactory to the Administrative Agent, including,
without limitation, personal property security agreements, equity
pledge agreements, real estate mortgages, deeds of trust, certified
board resolutions, incumbency certificates and legal opinions
(including, without limitation, customary opinions concluding that no
conflict would occur and no liens would arise with respect to certain
material contracts). In addition, the Company shall, and shall cause
its Subsidiaries and the Parent, to provide the Administrative Agent
with such information as may be reasonably requested to facilitate the
Administrative Agent's creation and documentation of such security
interests and liens, and shall bear the reasonable expenses of such
process, including, without limitation, the costs and expenses of all
recordation taxes, lien and title search reports, title insurance
policies, real estate surveys, local counsel to the Administrative
Agent and, to the extent currently in the possession of the Company,
real estate appraisals and environmental reports.
6.15 Tax Shelter Regulations. Promptly after a Borrower has
notified the Administrative Agent of any intention by a Borrower to
treat the Loans and Letters of Credit as being a "reportable
transaction" (within the meaning of Treasury Regulation Section
1.6011-4), the Borrowers shall deliver to the Administrative Agent and
each Lender, in form and detail satisfactory to the Administrative
Agent, a duly completed copy of IRS Form 8886 or any successor form
thereto."
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(p) Section 7.4 is amended to delete the word "and" at the end
of clause (m) in such section, to delete the period at the end of clause
(n) in such section and replace it with "; and" and to insert the following
clause (o) and subsequent paragraph at the end of such section:
"(o) Investments consisting of Guaranty Obligations permitted
pursuant to Section 7.8.
Notwithstanding the foregoing, Permitted Acquisitions
consummated pursuant to the exception in clause (d) of this Section 7.4
during the period commencing on the Third Amendment Effective Date and
ending on December 31, 2004 shall be limited to an aggregate amount of
consideration given (including, without limitation, any Indebtedness
assumed in connection with any asset purchase) equal to $25,000,000
minus the aggregate amount of Investments made during such period
pursuant to clauses (e) and (n) of this Section 7.4. In addition, the
aggregate cumulative amount of Investments made pursuant to such
clauses (e) and (n) of this Section 7.4 during the period commencing on
the Third Amendment Effective Date and ending December 31, 2004 (other
than Investments with respect to which the Company or its Restricted
Subsidiaries committed to prior to the Third Amendment Effective Date)
shall be limited to an amount equal to $25,000,000 minus the aggregate
amount of consideration given with respect to Permitted Acquisitions
consummated during such period (including, without limitation, any
Indebtedness assumed in connection with any asset purchase). After
December 31, 2004, provided no Default or Event of Default shall have
occurred and then be continuing, the foregoing limitations described in
this paragraph shall cease to be applicable."
(q) Section 7.5(c) is amended and restated in its entirety as
follows:
"(c) Indebtedness existing on the Third Amendment Effective
Date and set forth in Schedule 7.5(c);"
(r) Section 7.5(f) is deleted in its entirety and replaced
with the following:
"(f) Indebtedness constituting an Alternative Financing;"
(s) Section 7.5 is amended to delete the word "and" following
clause (j) of such section, to delete the period at the end of clause (k)
of such section and replace it with a semicolon, and to add the following
new clauses to the end of such section:
"(l) Indebtedness in an amount not to exceed $25,000,000 at
any time outstanding that is incurred or assumed by the
Company for the purpose of financing all or any part of the
cost of acquiring the property that secures such Indebtedness
(which Indebtedness includes Capitalized Lease Obligations),
other than Indebtedness incurred or assumed in connection with
an Acquisition, and any refinancing, extension, renewal or
refunding of such Indebtedness, provided that such
Indebtedness is not increased thereby;
(m) Indebtedness that is incurred in the ordinary course of
business in connection with the financing of insurance
premiums;
(n) Indebtedness that constitutes unsecured loans made by a
Restricted Subsidiary to the Company, by a Restricted
Subsidiary to another Restricted Subsidiary or by the Company
to a Restricted Subsidiary;
(o) Permitted Swap Obligations;
(p) Indebtedness incurred in the ordinary course of business
with respect to xxxxxxx'x compensation and other
self-insurance obligations, performance, surety, bid or
similar bonds and completion guarantees of the Company and the
Restricted Subsidiaries;
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(q) Indebtedness incurred in the ordinary course of business
with respect to bank overdraft lines of credit; and
(r) provided no Default or Event of Default exists or would
result therefrom, other Indebtedness not specified in clauses
(a)-(q) of this Section 7.5 not to exceed $10,000,000 at any
time outstanding."
(t) Section 7.7 is amended to add a new clause (c) at the end
of such section as follows:
"(c) The Company shall not use proceeds of Revolving Loans
resulting from the reinstatement of any of the Blocked Amount portion
of the Revolving Commitments pursuant to Section 2.7(a) except to pay
dividends with such proceeds to the Parent, the proceeds of which are
in turn used by the Parent to fund the redemption of the Converts."
(u) Section 7.8 is amended to delete the word "and" following
clause (h) of such section, to delete the period at the end of clause (i)
of such section and replace it with the clause "; and", and to add the
following new clause (j) to the end of such section:
"(j) obligations arising in connection with a disposition of a
business or assets and constituting indemnification, adjustment of the
purchase price or similar obligations."
(v) The introductory paragraph of Section 7.11 is amended and
restated in its entirety as follows:
"The Company shall not, and shall not suffer or permit any
Restricted Subsidiary to, declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or
securities on account of any shares of any class of its capital stock,
or purchase, redeem or otherwise acquire or retire for value (other
than at maturity) any Subordinated Indebtedness, any New Notes, any
shares of its capital stock or any warrants, rights or options to
acquire such shares, now or hereafter outstanding or voluntarily
purchase, redeem or otherwise acquire or retire for value (other than
at maturity) the Euros (each, a `Restricted Payment'); except that (i)
any Wholly-Owned Restricted Subsidiary may declare and make dividend
payments or other distributions to the Company or to another
Wholly-Owned Restricted Subsidiary; and (ii) the Company and any
Wholly-Owned Restricted Subsidiary may:"
(w) Section 7.11(c) is amended and restated in its entirety
as follows:
"(c)(i) purchase shares of the capital stock of the Parent,
and (ii) declare or pay cash dividends to the Parent in an aggregate
amount equal to $125,000,000; provided that immediately after giving
effect to any such proposed action, no Default or Event of Default
would exist; and provided further that no dividends shall be declared
or paid pursuant to clause (ii) of this Section 7.11(c) prior to June
30, 2005"
(x) Section 7.11(d) is hereby amended and restated in its
entirety as follows:
"(d) declare and pay dividends to the Parent to be used to pay
(i) taxes of the Parent and other expenses not relating to interest,
bank fees or other payments (other than reasonable legal fees) with
respect to Indebtedness, (ii) interest due and payable by the Parent
with respect to the Subordinated Debentures, the Converts or an
Alternative Financing or (iii) amounts due and payable by the Parent
with respect to Indebtedness of joint ventures which are guaranteed by
the Parent provided that such dividends pursuant to this clause (iii)
do not exceed $10,000,000 in the aggregate from and after the Third
Amendment Effective Date."
(y) Section 7.15(a) is amended to delete in its entirety the
schedule of periods and ratios set forth therein and to replace such
schedule with the following:
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"Reference Period Ending Minimum Ratio
------------------------ -------------
6/30/03 3.00 to 1.00
9/30/03 3.00 to 1.00
12/31/03 3.00 to 1.00
3/31/04 2.50 to 1.00
6/30/04 2.40 to 1.00
9/30/04 2.50 to 1.00
12/31/04 2.50 to 1.00
3/31/05 and thereafter 3.00 to 1.00"
(z) Section 7.15(b) is amended to delete in its entirety the
schedule of periods and ratios set forth therein and to replace such
schedule with the following:
"Reference Period Ending Maximum Ratio
------------------------ -------------
6/30/03 4.00 to 1.00
9/30/03 4.25 to 1.00
12/31/03 4.25 to 1.00
3/31/04 4.50 to 1.00
6/30/04 4.50 to 1.00
9/30/04 4.25 to 1.00
12/31/04 3.75 to 1.00
3/31/05 3.50 to 1.00
6/30/05 3.25 to 1.00
9/30/05 and thereafter 3.00 to 1.00"
(aa) Section 8.1(c) is amended to delete the word "or"
immediately prior to the number "6.9" in such section, to replace it with a
comma and to insert the phrase "or 6.14" immediately after the number "6.9"
in such section.
(bb) Section 10.8(a) is amended to insert the words "a Default
or" immediately prior to the occurrence of the words "an Event of Default"
in such section.
(cc) Section 10.9 is amended to insert the following sentence
to the end of such section:
"Notwithstanding anything herein to the contrary, each Lending
Party may disclose without limitation of any kind, any information with
respect to the "tax treatment" and "tax structure" (in each case,
within the meaning of Treasury Regulation Section 1.6011-4) of the
transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to such
Lending Party relating to such tax treatment and tax structure;
provided that with respect to any document or similar item that in
either case contains information concerning the tax treatment or tax
structure of the transaction as well as other information, this
sentence shall only apply to such portions of the document or similar
item that relate to the tax treatment or tax structure of the Loans,
Letters of Credit and transactions contemplated hereby."
(dd) Schedule 2.1 is hereby deleted in its entirety and
replaced with the schedule attached to this Agreement as Schedule 2.1.
(ee) The Pricing Grid set forth on Schedule 2.9 is hereby
deleted in its entirety and replaced with the following:
9
------------- ----------------------------- ------------------------ -----------------------
Level Leverage Ratio Applicable Margin for Applicable Margin for
Offshore Rate Loans Base Rate Loans
------------- ----------------------------- ------------------------ -----------------------
I Less than 3.25 to 1 225 100
------------- ----------------------------- ------------------------ -----------------------
II Equal to or greater than 250 125
3.25 to 1 but less than
3.75 to 1
------------- ----------------------------- ------------------------ -----------------------
III Equal to or greater than 300 150
3.75 to 1 but less than
4.00 to 1
------------- ----------------------------- ------------------------ -----------------------
IV Equal to or greater than 325 175
4.00 to 1
------------- ----------------------------- ------------------------ -----------------------
(ff) Schedule 7.5(c) is hereby deleted in its entirety and
replaced with the schedule attached to this Agreement as Schedule 7.5(c).
2. Consents. Subject to the conditions set forth in
Paragraph 4 of this Agreement, the Lenders hereby consent to each of the
following and waive any violation by the Company or its Subsidiaries with
Sections 7.4, 7.5, 7.8 or 7.11 resulting therefrom:
(a) the Company's issuance of the New Notes pursuant to the
terms and conditions described in the Offering Memorandum;
(b) each Guarantor's guarantee of the Company's obligations
with respect to the New Notes; and
(c) the Company's making of dividends to the Parent for the
purpose of consummating the Redemption.
3. Reclassification. The parties hereto hereby agree that
upon satisfaction (or waiver) of the conditions set forth in Paragraph 4 of this
Agreement, and prior to giving effect to any repayments of the Revolving Loans
resulting from the Company's receipt of proceeds from its issuance of the New
Notes, a $115,000,000 portion of the outstanding principal balance of the
Revolving Loans made in Dollars and for which the Company is the borrower shall
be reclassified as a $115,000,000 portion of the outstanding principal balance
of the Term A Loans and the Revolving Commitments of the Revolving Lenders shall
be permanently reduced ratably by such amount plus an additional $125,000,000
such that as of the Effective Date, prior to giving effect to any repayments on
such date, the Commitments of the Lenders shall be as set forth on the revised
Schedule 2.1 to the Credit Agreement attached to this Agreement.
4. Effectiveness of this Agreement; Conditions Precedent. The
provisions of Paragraphs 1, 2 and 3 of this Agreement shall be deemed to have
become effective as of June 13, 2003 (the "Effective Date"), but such
effectiveness shall be expressly conditioned upon:
(a) the Administrative Agent's receipt of an executed
counterpart of this Agreement executed and delivered by duly authorized
officers of each of the Borrowers, the Guarantors and the Required Lenders;
(b) the Company issuing not less than $250,000,000 in
aggregate initial principal amount of the New Notes pursuant to the terms
and conditions described in the Offering Memorandum and the Company's
application of all net proceeds therefrom, net of underwriting commissions
and fees and expenses payable upon
10
the issuance thereof and directly related thereto, to repay the Revolving
Loans (or such lesser amount necessary to reduce the outstanding principal
balance of the Revolving Loans to zero) effective immediately following the
reclassification of a portion of the outstanding principal balance of the
Revolving Loans as a portion of the outstanding principal balance of the
Term A Loans pursuant to Paragraph 3 of this Amendment;
(c) the Administrative Agent's receipt from the Borrowers and
the Guarantors of certified board resolutions and incumbency certificates
in each case in form and substance reasonably acceptable to the
Administrative Agent;
(d) the Administrative Agent's receipt of an opinion letter of
Xxxxxxxx & Xxxxx, counsel to the Company and its Subsidiaries, addressed to
the Administrative Agent and each Lender and in form, scope and substance
reasonably acceptable to the Administrative Agent, which includes, without
limitation, customary opinions concluding that no conflict would occur and
no liens would arise with respect to certain material contracts;
(e) the Borrowers' payment in full in cash or other
immediately available funds of an amendment fee to the Administrative
Agent, for the ratable account of each Lender that, as of 5:00 p.m. (
New
York time) on Wednesday, June 4, 2003, has executed and delivered to the
Administrative Agent a written commitment to enter into an amendment
effecting the provisions of this Agreement (in form and substance
acceptable to the Administrative Agent), in an amount equal to 0.20%
multiplied by the sum of each such Lender's Revolving Commitment and
outstanding principal balance of its Term A Loans (after giving effect to
this Agreement but without giving effect to the provisional reduction of
the Revolving Commitments by the Blocked Amount pursuant to Section 2.7(a),
as amended hereby); and
(f) the Borrowers' payment in full of all fees and reasonable
expenses due and payable by the Borrowers and Guarantors to the
Administrative Agent and to Banc of America Securities, LLC, in its
capacity as lead arranger with respect to this Agreement.
5. Representations, Warranties and Covenants.
(a) Each of the Borrowers and the Guarantors hereby represents
and warrants that this Agreement and the Credit Agreement as amended by
this Agreement constitute the legal, valid and binding obligations of such
Borrower or Guarantor, to the extent a party thereto, enforceable against
it in accordance with their respective terms except as enforceability may
be limited by applicable bankruptcy, insolvency or similar laws affecting
the enforcement of creditor's rights generally or by equitable principles
relating to enforceability.
(b) Each of the Borrowers and Guarantors hereby represents and
warrants that its execution, delivery and performance of this Agreement and
its performance of the Credit Agreement as amended by this Agreement, to
the extent a party thereto, have been duly authorized by all necessary
corporate action, do not: (i) contravene the terms of any of such
Borrower's or Guarantor's Organization Documents, (ii) conflict with or
result in any breach or contravention of, or the creation of a Lien under,
any document evidencing any Contractual Obligation to which such Borrower
or Guarantor is a party which conflict or breach would reasonably be likely
to have a Material Adverse Effect, or any order, injunction, writ or decree
of any Governmental Authority to which such Borrower or Guarantor or its
property is subject, or (iii) violate any Requirement of Law.
(c) Each of the Borrowers and the Guarantors hereby represents
and warrants that (i) no Default or Event of Default has occurred and is
continuing and (ii) all of the representations and warranties of such
Borrower or Guarantor contained in the Credit Agreement and in each other
Credit Document to which it is a party (other than representations and
warranties which, in accordance with their express terms, are made only as
of an earlier specified date) are true and correct as of the date of such
Borrower's or Guarantor's execution and delivery hereof or thereof in all
material respects as though made on and as of such date.
11
6. Reaffirmation, Ratification and Acknowledgment;
Reservation. Each Borrower and, by their execution and delivery of a counterpart
to this Agreement each Guarantor, hereby (a) ratifies and reaffirms all of its
payment and performance obligations, contingent or otherwise, under each Credit
Document to which it is a party, (b) agrees and acknowledges that such
ratification and reaffirmation is not a condition to the continued effectiveness
of such Credit Documents, and (c) agrees that neither such ratification and
reaffirmation, nor the Administrative Agent's, or any Lender's solicitation of
such ratification and reaffirmation, constitutes a course of dealing giving rise
to any obligation or condition requiring a similar or any other ratification or
reaffirmation from such Borrower or Guarantor with respect to any subsequent
modifications to the Credit Agreement or the other Credit Documents. The Credit
Agreement, as amended by this Agreement, is in all respects ratified and
confirmed. Each of the Credit Documents shall remain in full force and effect
and are hereby ratified and confirmed. Except as expressly set forth herein,
neither the execution, delivery nor effectiveness of this Agreement shall
operate as a waiver of any right, power or remedy of the Administrative Agent or
the Lenders, or of any Default or Event of Default (whether or not known to the
Administrative Agent or the Lenders), under any of the Credit Documents, all of
which rights, powers and remedies, with respect to any such Default or Event of
Default or otherwise, are hereby expressly reserved by the Administrative Agent
and the Lenders. This Agreement shall constitute a Credit Document for purposes
of the Credit Agreement.
7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (NOT CONFLICTS OF LAWS) OF THE
STATE OF
NEW YORK.
8. Administrative Agent's Expenses. The Company hereby agrees
to promptly reimburse the Administrative Agent for all of the reasonable
out-of-pocket expenses, including, without limitation, attorneys' and
paralegals' fees, it has heretofore or hereafter incurred or incurs in
connection with the preparation, negotiation and execution of this Agreement.
9. Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original and all of which together shall
constitute one and the same agreement among the parties. A facsimile of the
signature of any party on its counterpart hereto shall be effective as the
signature of the party executing such counterpart for purposes of the
effectiveness of this Agreement.
* * * *
12
X.X. TOWER CORPORATION, A MICHIGAN
CORPORATION
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
---------------------------------
Title: VP Planning and Governance
---------------------------------
TOWER AUTOMOTIVE EUROPE B.V.,
JOINTLY REPRESENTED BY
Managing Director A
-------------------
/s/ X.X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------
Title:
---------------------------------
AND
Managing Director B
-------------------
/s/ X.X. Xxxx /s/ S. Galesoof
---------------------------------------
ABN AMRO Trust Company (Nederland) B.V.
Signed by: X.X. Xxxx and S. Galesoof
--------- --------------
Title: proxyholder and proxyholder
------------ --------------
TOWER AUTOMOTIVE FINANCE B.V.,
JOINTLY REPRESENTED BY
Managing Director A
-------------------
/s/ X.X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------
Title:
---------------------------------
AND
Managing Director B
-------------------
/s/ X.X. Xxxx /s/ S. Galesoof
---------------------------------------
ABN AMRO Trust Company (Nederland) B.V.
Signed by: X.X. Xxxx and S. Galesoof
--------- --------------
Title: proxyholder and proxyholder
----------- ----------------
GUARANTORS:
ALGOODS USA, INC.
KALAMAZOO STAMPING AND DIE COMPANY
TOWER AUTOMOTIVE, INC.
TOWER AUTOMOTIVE BARDSTOWN, INC.
(F/K/A X. X. TOWER CORPORATION, A KENTUCKY
CORPORATION)
TOWER AUTOMOTIVE BOWLING GREEN, LLC
TOWER AUTOMOTIVE CHICAGO, LLC
TOWER AUTOMOTIVE GRANITE CITY, LLC
TOWER AUTOMOTIVE GRANITE CITY
SERVICES, LLC
TOWER AUTOMOTIVE INTERNATIONAL, INC.
TOWER AUTOMOTIVE INTERNATIONAL
FUNDING, INC.
TOWER AUTOMOTIVE INTERNATIONAL
HOLDINGS, INC.
TOWER AUTOMOTIVE LANSING, LLC
TOWER AUTOMOTIVE MILWAUKEE, LLC
TOWER AUTOMOTIVE PLYMOUTH, INC.
TOWER AUTOMOTIVE PRODUCTS COMPANY,
INC. (SUCCESSOR BY MERGER WITH X.X. TOWER
CORPORATION, AN INDIANA CORPORATION, AND TOWER
AUTOMOTIVE DELAWARE, INC.)
TOWER AUTOMOTIVE SERVICES AND
TECHNOLOGY, INC.
TOWER AUTOMOTIVE TECHNOLOGY, INC.
TOWER AUTOMOTIVE TECHNOLOGY
PRODUCTS, INC. (F/K/A) ACTIVE PRODUCTS
CORPORATION)
TOWER AUTOMOTIVE TOOL, LLC
(F/K/A ACTIVE TOOL AND MANUFACTURING CO., INC.)
TOWER AUTOMOTIVE TOOLING SERVICES, INC.
TOWER SERVICES, INC.
TRYLON CORPORATION
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
----------------------------
Title: VP Planning and Governance
----------------------------
14
TOWER AUTOMOTIVE MICHIGAN, LLC
(FORMERLY KNOWN AS TOWER AUTOMOTIVE LIMITED
PARTNERSHIP)
By: X.X. TOWER CORPORATION,
its sole member
By: /s/ Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
--------------------------
Title: VP Planning and Governance
--------------------------
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT
By: /s/ Xxxx XxXxxxxxx
------------------------------------
Name: Xxxx XxXxxxxxx
---------------------------------
Title: Managing Director
---------------------------------
BANK OF AMERICA, N.A., INDIVIDUALLY AS A LENDER
AND AS SWING LINE LENDER
By: /s/ Xxxx XxXxxxxxx
------------------------------------
Name: Xxxx XxXxxxxxx
----------------------------------
Title: Managing Director
----------------------------------
JPMORGAN CHASE BANK (FORMERLY, THE CHASE
MANHATTAN BANK), AS SYNDICATION AGENT
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx Xxx Xxxxx
-----------------------------------
Title: Vice President
-----------------------------------
15
STANDARD FEDERAL BANK, N.A.
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
---------------------------------
Its: Vice President
---------------------------------
FLEET NATIONAL BANK
By: /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxxxxx Xxxxx
---------------------------------
Its: Vice President
---------------------------------
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxxxx X. Xxxxxx
--------------------------------
Its: Vice President
--------------------------------
BANK ONE, NA
(AS SUCCESSOR TO BANK ONE, MICHIGAN)
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------------
Its: Director
--------------------------------
THE BANK OF
NEW YORK
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------
Its: Senior Vice President
--------------------------------
16
DRESDNER BANK AG
NEW YORK AND GRAND
CAYMAN BRANCHES
By:
----------------------------------
Name:
-------------------------------
Its:
--------------------------------
By:
----------------------------------
Name:
-------------------------------
Its:
--------------------------------
MIZUHO FINANCIAL GROUP
By:
----------------------------------
Name:
-------------------------------
Its:
--------------------------------
U.S. BANK NATIONAL ASSOCIATION
By:
----------------------------------
Name:
-------------------------------
Its:
--------------------------------
CITICORP USA INC.
By:
----------------------------------
Name:
-------------------------------
Its:
--------------------------------
17
NATIONAL CITY BANK
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
----------------------------
Its: Vice President
----------------------------
KEYBANK NATIONAL ASSOCIATION
By: /s/ W. Xxxxxx Xxxxxxx
----------------------------
Name: W. Xxxxxx Xxxxxxx
----------------------------
Its: Vice President
----------------------------
CHEVY CHASE BANK, FSB
By: ----------------------------
Name:----------------------------
Its: ----------------------------
BNP PARIBAS
By: /s/ Xxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxx Xxxxxx
----------------------------
Title: Director
---------------------------
BNP PARIBAS
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
----------------------------
Title: Central Region Manager
----------------------------
18
THE BANK OF TOKYO -- MITSUBISHI, LTD.,
CHICAGO BRANCH
By: /s/ Xxxxxxxxxx Xxxxxxxxx
----------------------------
Name: Xxxxxxxxxx Xxxxxxxxx
----------------------------
Its: Deputy General Manager
----------------------------
THE MITSUBISHI TRUST & BANKING
CORPORATION
By: /s/ Kyo Magome
----------------------------
Name: Kyo Magome
----------------------------
Its: Senior Vice President
----------------------------
JPMORGAN CHASE BANK (FORMERLY,
THE CHASE MANHATTAN BANK)
By:
----------------------------
Name:
----------------------------
Its:
----------------------------
THE BANK OF NOVA SCOTIA
By: /s/ X.X. Xxxxxx
----------------------------
Name: X. Xxxxxx
----------------------------
Its: Assistant Agent
----------------------------
19
COMERICA BANK
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxx
----------------------------
Its: Vice President
----------------------------
BANK HAPOALIM B.M.
By: /s/ Xxxxx X. Xxxxxxx /s/ Xxxxx Xxxx Xxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx Xxxxx Xxxx Xxxxx
-------------------------------------------
Its: Vice President Senior Vice President
-------------------------------------------
and Corporate Manager
-------------------------------------------
SUMITOMO MITSUI BANK CORPORATION
By:
-----------------------------------
Name:
--------------------------------
Its:
---------------------------------
---------------------------------------
By:
-----------------------------------
Name:
--------------------------------
Its:
---------------------------------
20
