FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND AMENDED AND RESTATED SECURITY AND PLEDGE AGREEMENT
Exhibit 99(a)
FIRST AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
AND
AMENDED AND RESTATED SECURITY AND PLEDGE AGREEMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
AND
AMENDED AND RESTATED SECURITY AND PLEDGE AGREEMENT
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND AMENDED AND RESTATED SECURITY AND
PLEDGE AGREEMENT (this “Amendment”) dated as of February 3, 2006, 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”).
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantors, the Lenders, the Administrative Agent and Citicorp USA,
Inc., as syndication agent, are parties to that certain Amended and Restated Revolving Credit, Term
Loan and Guaranty Agreement, dated as of November 21, 2005 (as the same may be amended, modified or
supplemented from time to time, the “Credit Agreement”);
WHEREAS, the Borrower, the Guarantors and the Administrative Agent are parties to that certain
Amended and Restated Security and Pledge Agreement dated as of November 21, 2005 (as the same may
be amended, modified or supplemented from time to time, the “Security and Pledge
Agreement”); and
WHEREAS, the Borrower and the Guarantors have requested that from and after the First
Amendment Effective Date (as hereinafter defined), the Credit Agreement and the Security and Pledge
Agreement each be amended subject to and upon the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms Generally. As used herein, all terms that are defined in the Credit
Agreement shall have the same meanings herein.
2. New Defined Terms in Credit Agreement. Section 1.01 of the Credit Agreement is
amended by adding the following new defined term in alphabetical order:
“Remediation Payments” shall mean environmental investigation and remediation
payments constituting Pre-Petition Payments in an aggregate amount not to exceed $10,000,000
made by the Borrower or the Guarantors in connection with, or to enable, the sale of plants
of the Borrower or the Guarantors permitted under this Agreement to one or more buyers that
are not Affiliates of the Borrower or the Guarantors.
3. Amendments to Defined Terms in Credit Agreement. Section 1.01 of the Credit
Agreement is amended by amending and restating the following definition to read in its entirety as
follows:
“Global EBITDAR” shall mean, for any period, all as determined in accordance
with GAAP, the consolidated net income (or net loss) of the Global Entities for such period,
plus (a) to the extent deducted in the calculation of consolidated net income, without
duplication, the sum of (i) income tax expense, (ii) interest expense, (iii) amortization or
write-off of debt discount and debt issuance costs and commissions, discounts and other fees
and charges associated with Indebtedness (including the Loans), (iv) depreciation and
amortization expense, (v) amortization of intangibles (including, but not limited to,
goodwill) and organization costs, (vi) any extraordinary, unusual or non-recurring non-cash
expenses or losses (other than Restructuring Costs) and one-time write-downs of assets,
(vii) any expenses accounted by the Borrower or any of it Subsidiaries in such period for
post-retirement or post-employment benefits under FAS 106 or FAS 112, (viii) any
Restructuring Costs of the Borrower and its Subsidiaries accounted for in such period, (ix)
professional fees and other “Chapter 11 expenses” (or “administrative costs reflecting
Chapter 11 expenses”) attributable to the Borrower and the Guarantors for such period as
shown on the Borrower’s consolidated statement of income for such period, and (x) the
cumulative effect of any change in accounting principles, minus (b) to the extent included
in the calculation of consolidated net income, the sum of (1) interest income and (2) any
extraordinary, unusual or non-recurring gains, all as determined on a consolidated basis,
minus (c) any cash payments made during such period in respect of expenses described in
clause (vii) above, minus (d) for any period ending in 2006, any cash payments made during
such period in respect of Restructuring Costs of the Borrower and its Subsidiaries in excess
of $175,000,000 in the aggregate, minus (e) for any period ending in 2007, the sum of (x)
any cash payments made during the portion of such period that occurs in 2007 in respect of
Restructuring Costs of the Borrower and its Subsidiaries in excess of $100,000,000 in the
aggregate and (y) any cash payments made during any portion of such period that occurs in
2006 in respect of Restructuring Costs of the Borrower and its Subsidiaries, to the extent
the aggregate amount of such payments exceeds $175,000,000.
4. Amendment to Section 5.01(a) of Credit Agreement (Annual Financial Statements).
Section 5.01(a) of the Credit Agreement is hereby amended by amending and restating the first
parenthetical therein to read in its entirety as follows:
“(or, with respect to each fiscal year commencing with the 2006 fiscal year, such
shorter period as the United States Securities and Exchange Commission may specify for the
filing of annual reports on Form 10 K)”
5. Amendments to Section 6.01 of Credit Agreement (Liens). Section 6.01 of the Credit
Agreement is hereby amended by deleting the “and” after clause (xix) thereof, renumbering clause
(xx) thereof to be clause (xxii), and adding the following new clauses (xx) and (xxi) in
appropriate numerical order:
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“(xx) Liens on assets of any non-Guarantor Domestic Entity that is a joint venture
securing Indebtedness of such Domestic Entity owed to the Borrower or a Guarantor that is
permitted under Section 6.03(xiii);”
(xxi) “Debtor Liens” as defined in and on the terms provided in paragraphs 19, 20 and
21 of the Final Order; and”
6. Amendment to Section 6.03 of Credit Agreement (Indebtedness). Section 6.03 of the
Credit Agreement is hereby amended by amending and restating clause (xiii) thereof to read in its
entirety as follows:
“(xiii) other Indebtedness of the Global Entities in an aggregate outstanding amount
not to exceed $25,000,000; provided that except with respect to any such Indebtedness of a
non-Guarantor Domestic Entity owed to the Borrower or a Guarantor, such Indebtedness shall
be unsecured.”
7. Amendment to Section 6.04(a) of Credit Agreement (EBITDAR). Section 6.04(a) of the
Credit Agreement is hereby amended by replacing the reference contained therein to “September 20,
2006” with “September 30, 2006”.
8. Amendment to Section 7.01(m) of Credit Agreement (Event of Default for Pre-Petition
Payments). Section 7.01(m) of the Credit Agreement is hereby amended by replacing the “and”
after clause (i)(y) thereof with a comma, re-lettering sub-clauses (w), (x), (y) and (z) of clause
(i) thereof to be clauses (v), (w), (x) and (y), respectively, and adding the following new clause
(z) immediately thereafter:
“and (z) in respect of Remediation Payments,”
9. Amendment to Section 2 of Security and Pledge Agreement (Secured Obligations).
Section 2 of the Security and Pledge Agreement is hereby amended by amending and restating the text
of such section to read in its entirety as follows:
“This Security Agreement and the Collateral secure the payment of (i) the Obligations,
(ii) any obligations of each of the Grantors in respect of Indebtedness owed to JPMCB, CUSA,
any other Lender or any of their respective banking Affiliates (or any Person that was a
Lender or a banking Affiliate of a Lender at the time such obligation was incurred) and
permitted by Section 6.03(viii) of the Credit Agreement, whether for principal, interest,
fees, expenses or otherwise (such obligations, the “Cash Management Obligations”) and (iii)
any Secured Hedging Obligations (as defined in Section 20) (collectively, all such
obligations of the Grantors described in clauses (i), (ii) and (iii) are the “Secured
Obligations”).”
10. Amendment to Section 15(g) of Security and Pledge Agreement (Remedies Waterfall).
Section 15(g) of the Security and Pledge Agreement is hereby amended by replacing “Designated
Hedging Obligations” with “Secured Hedging Obligations” each time it appears therein.
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11. Amendment to Section 20 of Security and Pledge Agreement (Additional Secured
Obligations). Section 20 of the Security and Pledge Agreement is hereby amended by amending
and restating the text of such section to read in its entirety as follows:
“Unless otherwise provided by the Borrower in writing to the Administrative Agent,
obligations under any Hedging Agreement between any Grantor and a Lender or an Affiliate of
a Lender (or a Person who was a Lender or an Affiliate of a Lender on the trade date with
respect to such obligations) shall automatically constitute additional Secured Obligations
hereunder (such obligations, “Secured Hedging Obligations”); provided that at no time shall
the aggregate amount of all Secured Hedging Obligations exceed $150,000,000, determined on a
marked-to-market basis. The Borrower shall include a line item in each Borrowing Base
Certificate showing the aggregate amount of all outstanding Secured Hedging Obligations
determined on a marked-to-market basis. In addition, the Borrower shall provide to the
Administrative Agent, concurrently with each delivery of a Borrowing Base Certificate (or,
if the Administrative Agent reasonably requests, more frequently), a summary of outstanding
Secured Hedging Obligations as of the period covered in such Borrowing Base Certificate (or
such other date reasonably requested by the Administrative Agent), showing the aggregate
amount of such obligations determined on a marked-to-market basis by counterparty and such
other information reasonably requested by the Administrative Agent. At the request of the
Administrative Agent from time to time, the Borrower shall provide to the Administrative
Agent copies of any Hedging Agreements pursuant to which Secured Hedging Obligations have
been incurred.”
12. Conditions to Effectiveness. This Amendment shall become effective on the date
(the “First Amendment Effective Date”) on which this Amendment shall have been executed by
the Borrower, the Guarantors, the Administrative Agent and the Required Lenders, and the
Administrative Agent shall have received evidence satisfactory to it of such execution.
13. Miscellaneous.
(a) Except to the extent hereby amended, the Credit Agreement, the Security and Pledge
Agreement and each of the other Loan Documents remain in full force and effect and are hereby
ratified and affirmed.
(b) 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.
(c) This Amendment shall be limited precisely as written and shall not be deemed (a) to be a
consent granted pursuant to, or a waiver or modification of, any other term or condition of the
Credit Agreement or any of the instruments or agreements referred to therein or (b) to prejudice
any right or rights which the Agents or the Lenders may now have or have in the future under or in
connection with the Credit Agreement or any of the instruments or agreements referred to therein.
Whenever the “Agreement” or the “Credit Agreement” is referred to in the Credit Agreement or any of
the instruments, agreements or other documents or papers executed
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or delivered in connection therewith, such reference shall be deemed to mean the Credit
Agreement as modified by this Amendment. Whenever the “Security Agreement” or the “Security and
Pledge Agreement” is referred to in the Credit Agreement, the Security and Pledge Agreement or any
of the instruments, agreements or other documents or papers executed or delivered in connection
therewith, such reference shall be deemed to mean the Security and Pledge Agreement as modified by
this Amendment.
(d) 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.
(e) 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.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the day and the year first written.
| BORROWER: | ||||||
| DELPHI CORPORATION | ||||||
| By: | /s/ XXXX X. XXXXXXX | |||||
| Title: Vice President and Chief Restructuring | ||||||
| Officer | ||||||
| GUARANTORS: | ||||||
| ASEC MANUFACTURING
GENERAL PARTNERSHIP, |
||||||
| a Delaware general partnership | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Title: Assistant Treasurer | ||||||
| ASEC SALES GENERAL PARTNERSHIP, | ||||||
| a Delaware general partnership | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Title: Assistant Treasurer | ||||||
| ASPIRE, INC., | ||||||
| a Michigan corporation | ||||||
| By: | /s/ XXXXX X. XXXXXXX | |||||
| Title: Vice President | ||||||
| DELCO ELECTRONIC OVERSEAS CORPORATION, |
||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Title: Assistant Treasurer | ||||||
| DELPHI AUTOMOTIVE SYSTEMS (HOLDING), INC., |
||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXX X. XXXXXXX | |||||
| Title: President | ||||||
| DELPHI AUTOMOTIVE SYSTEMS | ||||||
| GLOBAL (HOLDING), INC., | ||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXX X. XXXXXXX | |||||
| Title: President | ||||||
| DELPHI AUTOMOTIVE SYSTEMS HUMAN | ||||||
| RESOURCES LLC, | ||||||
| a Delaware limited liability company | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Title: Vice President & Treasurer | ||||||
| DELPHI AUTOMOTIVE SYSTEMS | ||||||
| INTERNATIONAL, INC., | ||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Title: Treasurer | ||||||
| DELPHI AUTOMOTIVE SYSTEMS KOREA, INC., | ||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Title: Chief Executive Officer & President | ||||||
| DELPHI AUTOMOTIVE SYSTEMS LLC, | ||||||
| a Delaware limited liability company | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Title: Vice President & Treasurer | ||||||
| DELPHI
AUTOMOTIVE SYSTEMS OVERSEAS CORPORATION, |
||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Title: Treasurer | ||||||
| DELPHI AUTOMOTIVE SYSTEMS RISK | ||||||
| MANAGEMENT CORP., | ||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXX X. XXXXXXX | |||||
| Title: Vice President & Treasurer | ||||||
| DELPHI AUTOMOTIVE SYSTEMS SERVICES LLC, | ||||||
| a Delaware limited liability company | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Title: Treasurer | ||||||
| DELPHI AUTOMOTIVE SYSTEMS TENNESSEE, INC., | ||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Title: Treasurer | ||||||
| DELPHI AUTOMOTIVE SYSTEMS THAILAND, INC., | ||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Title: Treasurer | ||||||
| DELPHI CHINA LLC, | ||||||
| a Delaware limited liability company | ||||||
| By: | /s/ XXXXX X. XXXXXXX | |||||
| Title: Chief Tax Officer | ||||||
| DELPHI CONNECTION SYSTEMS, | ||||||
| a California corporation | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Title: Treasurer | ||||||
| DELPHI DIESEL SYSTEMS CORP., | ||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXXX X. XXXXXXX | |||||
| Title: Chief Tax Officer | ||||||
| DELPHI ELECTRONICS (HOLDING) LLC, | ||||||
| a Delaware limited liability company | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Title: Assistant Treasurer | ||||||
| DELPHI FOREIGN SALES CORPORATION, | ||||||
| a Virgin Islands corporation | ||||||
| By: | /s/ XXXX X. XXXXXXX | |||||
| Title: Controller | ||||||
| DELPHI INTEGRATED SERVICE SOLUTIONS, INC., | ||||||
| a Michigan corporation | ||||||
| By: | /s/ XXXXX X. XXXXXXX | |||||
| Title: Vice President | ||||||
| DELPHI INTERNATIONAL HOLDINGS CORP., | ||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXX X. XXXXXXX | |||||
| Title: President | ||||||
| DELPHI INTERNATIONAL SERVICES, INC., | ||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Title: Chief Financial Officer & Treasurer | ||||||
| DELPHI LIQUIDATION HOLDING COMPANY, | ||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXX X. XXXXXXX | |||||
| Title: President | ||||||
| DELPHI LLC, | ||||||
| a Delaware limited liability company | ||||||
| By: | /s/ XXXX X. XXXXXXX | |||||
| Title: President | ||||||
| DELPHI MECHATRONIC SYSTEMS, INC., | ||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Title: Treasurer | ||||||
| DELPHI MEDICAL SYSTEMS COLORADO CORPORATION, | ||||||
| a Colorado corporation | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Title: Vice President & Treasurer | ||||||
| DELPHI MEDICAL SYSTEMS CORPORATION, | ||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Title: Vice President & Treasurer | ||||||
| DELPHI MEDICAL SYSTEMS TEXAS CORPORATION, | ||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Title: Vice President & Treasurer | ||||||
| DELPHI NY HOLDING CORPORATION, | ||||||
| a New York corporation | ||||||
| By: | /s/ XXXX X. XXXXXXX | |||||
| Title: President | ||||||
| DELPHI SERVICES HOLDING CORPORATION, | ||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Title: Treasurer | ||||||
| DELPHI TECHNOLOGIES, INC., | ||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXXXX X. XXXXXX | |||||
| Title: Vice President Intellectual Property | ||||||
| DREAL, INC., | ||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXX X. XXXXXXX | |||||
| Title: President | ||||||
| ENVIRONMENTAL CATALYSTS, LLC, | ||||||
| a Delaware limited liability company | ||||||
| By: | /s/ XXXXXX X. XXXXXX | |||||
| Title: Treasurer | ||||||
| EXHAUST SYSTEMS CORPORATION, | ||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Title: Assistant Treasurer | ||||||
| PACKARD XXXXXX INTERCONNECT COMPANY, | ||||||
| a Delaware corporation | ||||||
| By: | /s/ XXXXX X. XXXXXXX | |||||
| Title: Chief Tax Officer | ||||||
| SPECIALTY ELECTRONICS INTERNATIONAL LTD., | ||||||
| a Virgin Islands corporation | ||||||
| By: | /s/ XXXXXXX X. XXXXXX | |||||
| Title: Treasurer and Secretary | ||||||
| SPECIALTY ELECTRONICS, INC., | ||||||
| a South Carolina corporation | ||||||
| By: | /s/ XXXXX X. XXXXXXX | |||||
| Title: Chief Tax Officer | ||||||
| AGENTS AND LENDERS: | ||||||
| JPMORGAN CHASE BANK, N.A. | ||||||
| Individually and as Administrative Agent | ||||||
| By: | /s/ XXXXXX XXXXXXXX | |||||
| Title: Asssociate | ||||||
| CITICORP USA, INC. | ||||||
| By: | /s/ XXXXXXX XXXX | |||||
| Title: Director | ||||||
| Signature page for the First Amendment to Amended and Restated Credit Agreement and Amended and Restated Security and Pledge Agreement, dated as of February 3, 2006 among Delphi Corporation and the lenders party thereto | ||||||
| Name of Lender: | ||||||
| By: | ||||||
| Title: | ||||||
