EXHIBIT 10.1
EXECUTION COPY
SECOND AMENDMENT
This SECOND AMENDMENT (this "Agreement"), dated as of June 28, 2002, 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, 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. 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 to, among other things, (i) reduce the
Total Revolving Credit Commitment from $825,000,000 to $600,000,000, (ii) permit
a prepayment of the outstanding Term A Loans in the amount of $200,000,000 with
the proceeds of Revolving Loans in such amount, (iii) reset the amortization
schedule with respect to the remaining $125,000,000 of outstanding Term A Loans
and (iv) modify the maximum permitted Leverage Ratio for each of the four fiscal
quarter periods ending June 30, September 30, and December 31, 2002.
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 of each of the conditions set
forth in Paragraph 2 of this Agreement, the Credit Agreement is hereby amended
as follows (unless otherwise specified, section and schedule references used
herein shall mean and refer to sections and schedules of the Credit Agreement):
(a) Section 1.1 is amended by deleting in their entirety each of the
definitions of "Letter of Credit Commitment Amount," "Scheduled Term A
Repayments," "Term A Commitment" and "Total Revolving Commitment Amount" and to
replace such definitions, respectively, with the following definitions:
"Letter of Credit Commitment Amount" means the lesser of (a)
$250,000,000 and (b) the Total Revolving Commitment Amount.
"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 $23,750,000
"Term A Commitment" means, with respect to any Term A Lender, the
principal amount set forth opposite such Lender's name on Schedule 2.2
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 $125,000,000 as of the date that
certain Second Amendment hereto dated as of June 28, 2002 becomes
effective.
"Total Revolving Commitment Amount" means Six Hundred Million Dollars
($600,000,000), as reduced from time to time pursuant to Section 2.5.
(b) Section 2.6 is amended to delete the last sentence thereof in its
entirety and to replace such sentence with the following provision:
Any optional prepayment of the Term A Loans shall be applied ratably among
the then remaining Scheduled Term A Repayments.
(c) Section 2.14(a) is amended to delete the amount "$60,000,000" which
appears in clause (y) of such section and to replace such amount with the amount
"$100,000,000."
(d) Section 7.7(c) is deleted in its entirety.
(e) Section 7.15(b) is amended to delete that portion of the schedule of
periods and ratios pertaining to the periods from and after 6/30/02 and to
replace such portion of the schedule with the following periods and ratios:
Period
------
From Through Maximum Ratio
---------------- -------------
6/30/02 3/30/03 4.00 to 1.00
3/31/03 6/29/03 3.75 to 1.00
6/30/03 6/29/04 3.50 to 1.00
6/30/04 and thereafter 3.25 to 1.00
(f) Schedule 2.1 is hereby deleted in its entirety and replaced with the
schedule attached to this Agreement as Schedule 2.1.
2. Effectiveness of this Agreement; Conditions Precedent. The provisions of
Paragraph 1 of this Agreement shall be deemed to have become effective as of the
date of this Agreement, but such effectiveness shall be expressly conditioned
upon:
(a) the Administrative Agent's receipt of an originally-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 Administrative Agent's receipt of payment from the Borrowers,
in cash or other immediately available funds, of $200,000,000, representing
the proceeds of a Revolving Loan in such amount, and the application of all
of such proceeds to the remaining Scheduled Term A Repayments in the
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order of maturity (as in effect immediately prior to giving effect to the
amendments to be effected by this Agreement); and
(c) the Administrative Agent's receipt of a joinder to the Guaranty,
substantially in the form of Exhibit A thereto, executed and delivered by
each Guarantor named as a signatory hereto which was not a party to the
Guaranty as of the Closing Date.
3. Representations, Warranties and Covenants.
(a) Each of the Borrowers and the Guarantors hereby represents and warrants
that this Agreement, the Credit Agreement as amended by this Agreement, and the
Guaranty joinder contemplated hereby, 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 the Guaranty
joinder contemplated hereby, 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 or will
have occurred and be 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, and will be, 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.
4. 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 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. 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.
5. 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.
6. 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'
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and paralegals' fees, it has heretofore or hereafter incurred or incurs in
connection with the preparation, negotiation and execution of this Agreement.
7. 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.
* * * *
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Schedule 2.1
X.X. TOWER CORPORATION, A MICHIGAN CORPORATION
By: /s/
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Name:
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Title:
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TOWER AUTOMOTIVE EUROPE B.V.,
JOINTLY REPRESENTED BY
Managing Director A
By: /s/
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Name:
------------------------------------------
Title:
-----------------------------------------
AND
Managing Director B
------------------------------------------------
ABN AMRO Trust Company (Nederland) B.V.
Signed by:/s/ and /s/
---------------- -----------------
Title: and
------------------ -------------------
TOWER AUTOMOTIVE FINANCE B.V.,
JOINTLY REPRESENTED BY
Managing Director A
By: /s/
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
AND
Managing Director B
ABN AMRO Trust Company (Nederland) B.V.
Signed by:/s/ and /s/
---------------- -----------------
Title: and
------------------ -------------------
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/
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Name:
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Title:
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TOWER AUTOMOTIVE MICHIGAN LIMITED PARTNERSHIP
By: TOWER AUTOMOTIVE SERVICES AND
TECHNOLOGY, INC.,
its General Partner
By: /s/
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Name:
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Title:
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BANK OF AMERICA, N.A., as Administrative Agent
By: /s/
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Name:
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Title:
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BANK OF AMERICA, N.A., individually as a Lender
and as Swing Line Lender
By: /s/
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Name:
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Title:
-----------------------------------------
JPMORGAN CHASE BANK (FORMERLY, THE CHASE
MANHATTAN BANK), AS SYNDICATION AGENT
By: /s/
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Name:
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Title:
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7
STANDARD FEDERAL BANK, N.A.
By: /s/
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Name:
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Its:
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WACHOVIA BANK, N.A.
By: /s/
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Name:
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Its:
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BANK ONE, MICHIGAN
By: /s/
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Name:
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Its:
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THE BANK OF NEW YORK
By: /s/
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Name:
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Its:
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U.S. BANK NATIONAL ASSOCIATION
By: /s/
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Name:
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Its:
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8
CITICORP USA INC.
By: /s/
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Name:
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Its:
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NATIONAL CITY BANK
By: /s/
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Name:
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Its:
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CHEVY CHASE BANK, FSB
By: /s/
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Name:
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Its:
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BNP PARIBAS
By: /s/
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Name:
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Its:
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BNP PARIBAS
By: /s/
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Name:
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Its:
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9
THE MITSUBISHI TRUST & BANKING CORPORATION
By: /s/
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Name:
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Its:
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JPMORGAN CHASE BANK (FORMERLY,
THE CHASE MANHATTAN BANK)
By: /s/
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Name:
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Its:
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THE BANK OF NOVA SCOTIA
By: /s/
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Name:
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Its:
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COMERICA BANK
By: /s/
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Name:
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Its:
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