AMENDMENT NO. 1 TO THE AMENDED AND RESTATED SENIOR SECURED SUPERPRIORITY DEBTOR-IN-POSSESSION CREDIT AGREEMENT Dated as of January 25, 2007
Exhibit 99.1
AMENDMENT NO. 1 TO THE AMENDED AND RESTATED SENIOR SECURED
SUPERPRIORITY DEBTOR-IN-POSSESSION CREDIT AGREEMENT
SUPERPRIORITY DEBTOR-IN-POSSESSION CREDIT AGREEMENT
Dated as of January 25, 2007
AMENDMENT NO. 1 TO THE SENIOR SECURED SUPERPRIORITY DEBTOR-IN-POSSESSION CREDIT AGREEMENT
among Xxxx Corporation, a Virginia corporation and a debtor and debtor-in-possession in a case
pending under chapter 11 of the Bankruptcy Code (the “Borrower”), the Guarantors party
hereto, each of which is a debtor and debtor-in-possession in a case pending under chapter 11 of
the Bankruptcy Code, and Citicorp North America, Inc. (“CNAI”), as administrative agent
(the “Administrative Agent”) for the Incremental Term Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Guarantors, the financial institutions and other institutional lenders
party thereto (the “Lenders”), the Administrative Agent and the other agents party thereto
have entered into an Amended and Restated Senior Secured Superpriority Debtor-In-Possession Credit
Agreement dated as of April 13, 2006 (as further amended, supplemented or otherwise modified
through the date hereof, the “Credit Agreement”). Capitalized terms not otherwise defined
in this Amendment have the same meanings as specified in the Credit Agreement.
(2) The Borrower has requested that the Required Lenders agree to amend certain provisions of
the Credit Agreement as described herein, including, without limitation, to increase the Term
Facility by $200,000,000.
(3) The Initial Lenders and the Required Lenders have agreed, subject to the terms and
conditions stated below, to amend the Credit Agreement as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement.
(a) Section 1.01 of the Credit Agreement is hereby amended by inserting the following new
terms in the correct alphabetical order:
“A&R Amendment No. 1” means Amendment No. 1 to the Agreement dated as of
January 25, 2007, among the Borrower, the Guarantors, and CNAI as administrative agent for
the Incremental Term Lenders.
“A&R Amendment No. 1 Effective Date” has the meaning specified in A&R
Amendment No. 1.
“Asset Purchase Agreement” means the Asset Purchase Agreement dated as of
September 11, 2006, by and between the Borrower and Xxxxxxxxxxx USA, L.L.C., a Delaware
limited liability company, as amended by (a) the First Amendment to the Asset
Purchase Agreement dated as of September 29, 2006 and (b) the Second Amendment to the Asset Purchase
Agreement dated as of October 17, 2006.
“European Restructuring” means the corporate restructuring of the Borrower’s
European subsidiaries on substantially the terms described in Schedule II to A&R Amendment
No. 1, without any changes thereto that would, in the opinion of the Administrative Agent,
impair in any material respect the interests of the Lenders in the Collateral, except to
the extent that any such changes are otherwise not prohibited by the terms of this
Agreement.
“Incremental Term Advance” has the meaning specified in Section 2.01(a)(ii).
“Incremental Term Commitment” means, as to each Incremental Term Lender, its
obligation to make Incremental Term Advances to the Borrower pursuant to Section
2.01(a)(ii) in an aggregate principal amount at any one time outstanding not to exceed the
amount set forth opposite such Incremental Term Lender’s name on Schedule I-A under the
caption “Incremental Term Commitment” or, if such Incremental Term Lender has entered into
one or more Assignment and Acceptances, set forth for such Incremental Term Lender in the
Register maintained by the Administrative Agent pursuant to Section 10.07 as such
Incremental Term Lender’s “Incremental Term Commitment”.
“Incremental Term Facility” means, at any time, the aggregate amount of the
Incremental Term Lenders’ Incremental Term Advances at such time.
“Incremental Term Lenders” means, at any time, any Lender that has an
Incremental Term Commitment or an outstanding Incremental Term Advance at such time.
“Trailer Axle Business Sale” means the sale of the assets and liabilities
comprising the trailer axle manufacturing business (as more fully described on Schedule III
to A&R Amendment No. 1) of the Borrower and its Subsidiaries, the terms of which are set
forth in the Asset Purchase Agreement. The Trailer Axle Business Sale is contingent upon
the approval, pursuant to order of the Bankruptcy Court, of a motion filed with the
Bankruptcy Court on September 11, 2006 by the Borrower and the Guarantors seeking approval
of the Trailer Axle Business Sale.
(b) Section 1.01 of the Credit Agreement is hereby further amended by:
(i) Amending and restating clause (a) of the definition of “Applicable Margin” as
follows:
“(a) in respect of the Term Facility, 2.50% per annum, in the case of Eurodollar
Advances, and 1.50% per annum, in the case of Base Rate Advances,”
(ii) Amending and restating clause (vii) of the definition of “EBITDAR” as follows:
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“(vii) in each case without duplication, cash Restructuring Charges to the extent
deducted in computing net income for such period and settled or to be settled in cash
during such period in an aggregate amount not to exceed $100,000,000 in the twelve-month
period then ended, in each case of the Borrower and its Subsidiaries, determined in
accordance with GAAP for such period,”
(iii) Amending and restating the first parenthetical of the definition of “Net Cash
Proceeds” as follows:
“(other than (x) the Trailer Axle Business Sale or (y) any sale, lease, transfer or
other disposition of assets pursuant to clauses (i), (ii), (iv) or (v) of Section 5.02(h)
and, to the extent that the distribution to any Loan Party of any proceeds of any sale,
transfer or other disposition of any asset of a Foreign Subsidiary would (1) result in
material adverse tax consequences, (2) result in a breach of any agreement governing Debt
of such Foreign Subsidiary permitted to exist or to be incurred by such Foreign Subsidiary
under the terms of this Agreement and/or (3) be limited or prohibited under applicable
local law, clause (x) of Section 5.02(h))”
(iv) Adding at the end of the definition of “Term Commitment” the following language:
“Unless the context shall otherwise require, after the effectiveness of any
Incremental Term Commitment, the term “Term Commitment” shall also include such Incremental
Term Commitment.”
(v) Adding at the end of the definition of “Term Facility” the following language:
“Unless the context shall otherwise require, the term “Term Facility” shall also
include the Incremental Term Facility.”
(vi) Adding at the end of the definition of “Term Lender” the following language:
“Unless the context shall otherwise require, the term “Term Lender” shall also include
Incremental Term Lenders.”
(vii) Adding at the end of the definition of “Term Note” the following language:
“Unless the context shall otherwise require, the term “Term Note” shall also include
such promissory notes evidencing indebtedness of the Borrower in respect of Incremental
Term Advances.”
(c) Section 2.01 of the Credit Agreement is hereby amended by amending and restating clause
(a) therein as follows:
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“(a) The Term Advances and Incremental Term Advances.
(i) Each Term Lender severally agrees, on the terms and conditions hereinafter set
forth, to make a single advance to the Borrower (a “Term Advance”) on any Business
Day during the period from the date of the entry of the Final Order until such date as the
Initial Lenders and the Borrower shall mutually determine, in an amount not to exceed such
Lender’s Term Commitment at such time. Unless the context shall otherwise require, and
excluding this Section 2.01(a)(i), the term “Term Advance” shall also include the
Incremental Term Advances as defined in Section 2.01(a)(ii) hereto.
(ii) Each Incremental Term Lender severally agrees, on the terms and conditions
hereinafter set forth, to make a single advance to the Borrower (an “Incremental Term
Advance”) on the A&R Amendment No. 1 Effective Date, in an amount not to exceed such
Incremental Term Lender’s Incremental Term Commitment at such time.
(iii) Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be
reborrowed.”
(d) Section 5.02(g) of the Credit Agreement is hereby amended by (i) deleting the word “and”
at the end of clause (xiv); and (ii) amending and restating clause (xv) therein as follows:
“(xv) loans or advances made by any Foreign Subsidiary to the purchaser of
receivables and receivables related assets or any interest therein to fund part of the
purchase price of such receivables and receivables related assets or any interest therein
in connection with the factoring or sale of such receivables pursuant to a transaction
permitted pursuant to Section 5.02(b)(vi); and (xvi) other Investments to the extent not
permitted pursuant to any other subpart of this Section in an amount not to exceed
$15,000,000 in any Fiscal Year.”
(e) Section 5.02 of the Credit Agreement is hereby amended to add the following new
subpart (q) immediately following subpart (p):
“(q) European Restructuring. Notwithstanding any limitation set forth in
Sections 5.02(f), (g), (h) or (l) hereof to the contrary, on or after the A&R Amendment No.
1 Effective Date, the Borrower and each of the other Loan Parties may consummate the
European Restructuring,”
(f) Section 5.04(a) of the Credit Agreement is hereby amended by replacing the table therein
that sets forth the Minimum Global EBITDAR with the following table:
| Month | Period then Ended | EBITDAR | ||||
January 2007
|
11 months | $ | 200,000,000 | |||
February 2007
|
12 months | $ | 200,000,000 | |||
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| Month | Period then Ended | EBITDAR | ||||
March 2007
|
12 months | $ | 175,000,000 | |||
April 2007
|
12 months | $ | 175,000,000 | |||
May 2007
|
12 months | $ | 170,000,000 | |||
June 2007
|
12 months | $ | 170,000,000 | |||
July 2007
|
12 months | $ | 185,000,000 | |||
August 2007
|
12 months | $ | 200,000,000 | |||
September 2007
|
12 months | $ | 200,000,000 | |||
October 2007
|
12 months | $ | 230,000,000 | |||
November 2007
|
12 months | $ | 250,000,000 | |||
December 2007
|
12 months | $ | 250,000,000 | |||
January 2008
|
12 months | $ | 250,000,000 | |||
February 2008
|
12 months | $ | 250,000,000 | |||
March 2008
|
12 months | $ | 250,000,000 | |||
(g) The Credit Agreement is hereby amended by adding thereto as Schedule I-A the table
attached as Annex I hereto.
SECTION 2. Conditions of Effectiveness. This Amendment shall become effective as of
the date first above written (the “A&R Amendment No. 1 Effective Date”) when, and only
when, the following conditions have been satisfied:
(a) the Administrative Agent shall have received counterparts of this Amendment
executed by each Loan Party and the Required Lenders or, as to any of the Lenders, advice
satisfactory to the Agent that such Lender has executed this Amendment,
(b) the Administrative Agent shall have received a certificate signed by a duly
authorized officer of the Borrower stating that: (x) the representations and warranties
contained in Article IV of the Credit Agreement are true and correct in all material
respects on and as of the date of such certificate as though made on and as of such date
other than any such representations or warranties that, by their terms, refer to a
date other than the date of such certificate; and (y) no event has occurred and is
continuing that constitutes a Default,
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(c) the Administrative Agent shall have received a favorable opinion of Xxxxx Day as
to the enforceability of the Credit Agreement as amended, and internal counsel to the Loan
Parties as to such other matters as the Administrative Agent and the Initial Lenders may
reasonably request,
(d) the Bankruptcy Court shall have entered an order in substantially the form of
Exhibit A hereto (with such changes as may be agreed to by the Administrative Agent),
approving this Amendment and the other transactions contemplated herein, and
(e) all fees and expenses of the Administrative Agent (including all reasonable fees
and expenses of counsel to the Administrative Agent), to the extent invoiced prior to the
date hereof, shall have been paid.
(f) each Revolving Credit Lender that executes a counterpart to this Amendment on or
before January 18, 2007 at 5:00 p.m. eastern shall have been paid an amendment fee (the
“Amendment Fee”) in an amount equal to 0.125% in respect of its Revolving Credit
Commitment, which fee shall be earned upon the A&R Amendment No. 1 Effective Date and
become due and payable upon the funding of all or any portion of the Incremental Term
Facility.
SECTION 3. Confirmation of Representations and Warranties. Each of the Loan Parties
hereby represents and warrants, on and as of the date hereof, that the representations and
warranties contained in the Credit Agreement are true and correct in all material respects on and
as of the date hereof, before and after giving effect to this Amendment, as though made on and as
of the date hereof, other than any such representations or warranties that, by their terms, refer
to a specific date.
SECTION 4. Affirmation of Guarantors. Each Guarantor hereby consents to the
amendments to the Credit Agreement effected hereby, and hereby confirms and agrees that,
notwithstanding the effectiveness of this Amendment, the obligations of such Guarantor contained in
Article VIII of the Credit Agreement, as amended hereby, or in any other Loan Documents to which it
is a party are, and shall remain, in full force and effect and are hereby ratified and confirmed in
all respects, except that, on and after the effectiveness of this Amendment, each reference in
Article VIII of the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like
import shall mean and be a reference to the Credit Agreement, as amended by this Amendment.
SECTION 5. Reference to and Effect on the Loan Documents. (a) On and after the
effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement”,
“hereunder”, “hereof” or words of like import referring to the Credit Agreement and each reference
in the Notes and each of the other Loan Documents to “the Credit Agreement”, “thereunder”,
“thereof” or words of like import referring to the Credit Agreement shall mean and be a reference
to the Credit Agreement as amended by this Amendment.
(b) The Credit Agreement, the Notes and each of the other Loan Documents, as specifically
amended by this Amendment, are and shall continue to be in full force and effect and are hereby
in all respects ratified and confirmed.
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(c) 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 the Credit Agreement or any other Loan Document, nor constitute a
waiver of any provision of the Credit Agreement or any other Loan Document.
SECTION 6. Costs, Expenses. The Borrowers agree to pay on demand all costs and
expenses of the Administrative Agent in connection with the preparation, execution, delivery and
administration, modification and amendment of this Amendment and the other instruments and
documents to be delivered hereunder (including, without limitation, the reasonable fees and
expenses of counsel for the Administrative Agent) in accordance with the terms of Section 10.04 of
the Credit Agreement.
SECTION 7. Execution in Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute but one
and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment
by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment.
SECTION 8. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York, and to the extent applicable, the Bankruptcy
Code.
[The remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first above written.
| XXXX CORPORATION, a debtor and a debtor-in-possession, as Borrower |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Treasurer | |||
| By | /s/ X. X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Chief Financial Officer | |||
| BRAKE SYSTEMS, INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| BWDAC, INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| COUPLED PRODUCTS, INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| DAKOTA NEW YORK CORP. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| DANA ATLANTIC LLC FKA GLACIER DAIDO AMERICA, LLC As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| XXXX AUTOMOTIVE AFTERMARKET, INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| DANA BRAZIL HOLDINGS LLC As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| DANA BRAZIL HOLDINGS I LLC As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| DANA INFORMATION TECHNOLOGY LLC As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| XXXX XXXXXXXXXXXXX FINANCE, INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| XXXX XXXXXXXXXXXXX HOLDINGS, INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| DANA RISK MANAGEMENT SERVICES, INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| DANA TECHNOLOGY INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| DANA WORLD TRADE CORPORATION As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| DANDORR L.L.C. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| XXXX LEASING CORPORATION As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| DTF TRUCKING INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| XXXXXX-XXXXX, INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| EFMG LLC As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| EPE, INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| ERS LLC As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| FLIGHT OPERATIONS, INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| FRICTION INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| FRICTION MATERIALS, INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| GLACIER VANDERVELL INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| HOSE & TUBING PRODUCTS, INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| XXXX CORPORATION As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| LONG AUTOMOTIVE LLC As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| LONG COOLING LLC As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| LONG USA LLC As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| MIDLAND BRAKE, INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| PRATTVILLE MFG., INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| REINZ WISCONSIN GASKET LLC As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| XXXXXX HEAVY AXLE & BRAKE, INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| XXXXXX HEAVY AXLE HOLDINGS, INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| XXXXXX OUTDOOR POWER EQUIPMENT COMPONENTS LLC As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| TORQUE-TRACTION INTEGRATION TECHNOLOGIES LLC As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| TORQUE-TRACTION MANUFACTURING TECHNOLOGIES LLC As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| TORQUE-TRACTION TECHNOLOGIES LLC As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| UNITED BRAKE SYSTEMS INC. As a debtor and a debtor-in-possession, and as a Guarantor |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| CITICORP NORTH AMERICA, INC., as Administrative Agent and Lender |
||||
| By | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President | |||
