EXHIBIT 10.8
AMENDMENT NO. 2 AND WAIVER TO CREDIT AGREEMENT
This AMENDMENT NO. 2 AND WAIVER dated as of February 6, 2004 (this
"Amendment"), among HLI OPERATING COMPANY, INC., a Delaware corporation (the
"Borrower"), XXXXX LEMMERZ INTERNATIONAL, INC., a Delaware corporation (the
"Holdings"), and CITICORP NORTH AMERICA, INC. ("CNAI"), as Administrative Agent
(as defined below) on behalf of each Lender executing a Lender Consent (as
defined below) amends certain provisions of the Credit Agreement, dated as of
June 3, 2003 and amended as of October 16, 2003 (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, Holdings, the Lenders and Issuers (in each case
as defined therein) party thereto, CNAI, as administrative agent for the Lenders
and the Issuers (in such capacity, and as agent for the Secured Parties under
the other Loan Documents, the "Administrative Agent"), XXXXXX COMMERCIAL PAPER
INC., as Syndication Agent for the Lenders and the Issuers, and GENERAL ELECTRIC
CAPITAL CORPORATION, as Documentation Agent for the lenders and issuers,
CITIGROUP GLOBAL MARKETS INC. and XXXXXX BROTHERS INC., as Joint Book-Running
Lead Managers and Joint Lead Arrangers.
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders agree to amend or
waive certain provisions of the Credit Agreement;
WHEREAS, the Borrowers and the Administrative Agent wish to enter into
this Amendment for the purpose of giving effect to such modifications in each
case as more particularly set forth herein;
WHEREAS, pursuant to Section 11.1(a) of the Credit Agreement, the
consent of the Requisite Lenders is required to effect the amendments and
waivers set forth herein.
NOW, THEREFORE, in consideration of the above premises, the Borrowers
and the Administrative Agent, at the direction of the Lenders constituting the
Requisite Lenders, agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings ascribed to such terms in the Credit Agreement.
ARTICLE II
AMENDMENT TO ARTICLE I
(DEFINITIONS)
Section 2.1 EBITDA. The definition of "EBITDA" shall be amended by
deleting from clause (b)(vi) thereof the figure "$20,000,000" and inserting in
its place the figure "$30,000,000".
ARTICLE III
AMENDMENT TO ARTICLE VI
(REPORTING COVENANTS)
Section 3.1 FINANCIAL STATEMENTS. Subsection 6.1(f) shall be amended
(i) by deleting the figure and word "30 days" from the first line thereof and
inserting in its place the figure and word "45 days" and (ii) by deleting the
reference to "November 30" from the fourth line thereof and inserting in its
place "December 15".
ARTICLE IV
AMENDMENT TO ARTICLE VII
(AFFIRMATIVE COVENANTS)
Section 4.1 PRESERVATION OF CORPORATE EXISTENCE, ETC. Section 7.1 shall
be amended by inserting at the end thereof the following sentence:
Notwithstanding the foregoing, the Borrower may dissolve, or
cause to be dissolved, any wholly-owned Subsidiary that is not
actively operating, so long as the dissolution or liquidation
of such Subsidiary shall not have an adverse effect on the
business of the Borrower and its Subsidiaries or the Liens of
the Administrative Agent or the Collateral (other than the
Lien of the Administrative Agent on the Stock of such
wholly-owned Subsidiary that is dissolved).
ARTICLE V
AMENDMENT TO ARTICLE VIII
(NEGATIVE COVENANTS)
Section 5.1 INDEBTEDNESS. Subsection 8.1(j) shall be amended by
deleting the figure "$30,000,000" therefrom and inserting in its place the
figure "$40,000,000".
Section 5.2 LIENS, ETC.
(a) Subsection 8.2(h) shall be amended by deleting the figure
"$5,000,000" therefrom and inserting in its place the figure "$10,000,000".
Section 5.3 INVESTMENTS. Clause (iii) of Subsection 8.3(b) is hereby
amended and restated in its entirety as follows:
(iii) Investments in cash and Cash Equivalents by Classified
Foreign Subsidiaries in an amount not to exceed at any time
during the period through July 31, 2004, $45,000,000 and
thereafter, $20,000,000.
ARTICLE VI
WAIVER OF SECTION 2.10
(MANDATORY PREPAYMENTS)
Section 6.1 The provisions of Subsection 2.10(a) are hereby waived
solely to the extent necessary for the Borrower to use Net Cash Proceeds from
that certain Equity Issuance of
2
up to 7,073,017 shares of common stock to the public prior to March 30, 2004 to
redeem that amount of its Senior Notes then permitted to be redeemed under the
Indenture at a redemption price not greater than 110.5% of their principal
amount, plus accrued and unpaid interest thereon.
ARTICLE VII
WAIVER OF SECTION 5.3
(MINIMUM FIXED CHARGE COVERAGE RATIO)
Section 7.1 The provisions of Section 5.3 shall have no force and
effect solely to the extent that Borrower fails to maintain the minimum Fixed
Charge Coverage Ratio required pursuant to such Section 5.3 as of the last day
of each of (i) the Fiscal Quarter ending July 31, 2004 and (ii) the Fiscal
Quarter ending October 31, 2004.
ARTICLE VIII
WAIVER OF SECTION 8.5
(RESTRICTED PAYMENTS)
Section 8.1 The provisions of Section 8.5 are hereby waived solely to
the extent necessary for the Borrower to use Net Cash Proceeds from that certain
Equity Issuance of up to 7,073,017 shares of common stock to the public prior to
March 30, 2004 to redeem that amount of its Senior Notes then permitted to be
redeemed under the Indenture at a redemption price not greater than 110.5% of
their principal amount, plus accrued and unpaid interest.
ARTICLE IX
WAIVER OF SECTION 8.6
(PREPAYMENT AND CANCELLATION OF INDEBTEDNESS)
Section 9.1 The provisions of clause (b) of Section 8.6 are hereby
waived solely to the extent necessary for the Borrower to use Net Cash Proceeds
from that certain Equity Issuance of up to 7,073,017 shares of common stock to
the public prior to March 30, 2004 to redeem that amount of its Senior Notes
then permitted to be redeemed under the Indenture at a redemption price not
greater than 110.5% of their principal amount, plus accrued and unpaid interest.
ARTICLE X
CONDITIONS PRECEDENT TO THE EFFECTIVENESS
OF THIS AMENDMENT NO. 2.
Section 10.1 GENERAL EFFECTIVENESS. This Amendment No. 2 shall become
effective, on the date each of the following conditions precedent is satisfied
or duly waived by the Requisite Lenders (the "Amendment Effective Date"):
Documentation. The Administrative Agent shall have received on
or prior to the Amendment Effective Date each of the following, each dated the
Amendment Effective Date unless otherwise indicated or agreed to by the
Administrative Agent, in form and substance satisfactory to the Administrative
Agent:
(i) this Amendment No. 2 executed by the Borrower and
Holdings;
(ii) the Consent and Agreement in the form attached
hereto as Exhibit A, executed by each of the
Guarantors;
3
(iii) Acknowledgment and Consents, in the form set
forth hereto as Exhibit B (each, a "Lender Consent"),
executed by the Lenders constituting the Requisite
Lenders; and
(iv) such additional documentation as the
Administrative Agent may reasonably require.
ARTICLE XI
MISCELLANEOUS
Section 11.1 SUBSIDIARY GUARANTORS. Each Borrower hereby represents and
warrants to the Administrative Agent and the Lenders that as of the date hereof
the Consent and Agreement in the form attached hereto as Exhibit A sets forth
the true and correct name of each Subsidiary Guarantor.
Section 11.2 REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
(a) Except as specifically amended or waived above, all of the
terms of the Credit Agreement and all other Loan Documents shall remain
unchanged and in full force and effect and all obligations and liabilities of
the Loan Parties thereunder shall remain in full force and effect and each of
which is hereby reaffirmed.
(b) The execution, delivery and effectiveness of this
Amendment No. 2 shall not, except as expressly provided herein, operate as an
amendment or waiver of any right, power or remedy of any Lender, any Issuer, or
the Administrative Agent under the Credit Agreement or any Loan Document nor
constitute an amendment or waiver of any provision of the Credit Agreement or
any Loan Document.
(c) This Amendment No. 2 is a Loan Document.
Section 11.3 COSTS AND EXPENSES. The Borrowers agree to pay on demand
in accordance with the terms of Section 11.3 of the Credit Agreement all costs
and expenses of the Administrative Agent in connection with the preparation,
reproduction, execution and delivery of this Amendment No. 2, and all other Loan
Documents entered into in connection herewith, including the reasonable fees,
expenses and disbursements of Weil, Gotshal & Xxxxxx LLP and other counsel for
the Administrative Agent with respect thereto.
4
Section 11.4 TITLES. The Section titles contained in this Amendment No.
2 are and shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto.
Section 11.5 EXECUTION IN COUNTERPARTS. This Amendment No. 2 may be
executed and delivered in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original and all of which taken together shall constitute one
and the same original agreement.
Section 11.6 NOTICES. All communications and notices to the
Administrative Agent hereunder shall be given as provided in the Credit
Agreement.
Section 11.7 SEVERABILITY. If any term or provision set forth in this
Amendment No. 2 shall be invalid or unenforceable, the remainder of this
Amendment No. 2, or the application of such terms or provisions to persons or
circumstances, other than those to which it is held unenforceable, shall not in
any way be affected or impaired thereby.
Section 11.8 SUCCESSORS. The terms of this Amendment No. 2 shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors or assigns.
Section 11.9 GOVERNING LAW. This Amendment No. 2 shall be interpreted,
and the rights and liabilities of the parties determined, in accordance with the
internal law of the State of New York.
[signature pages follow]
5
IN WITNESS WHEREOF, this Amendment No. 2 has been duly executed on the
date set forth above.
HLI OPERATING COMPANY INC.,
as Borrower
------------------------------------
By:
Name:
Title:
XXXXX LEMMERZ INTERNATIONAL, INC.,
as Holdings
------------------------------------
By:
Name:
Title:
CITICORP NORTH AMERICA INC.,
as Administrative Agent
------------------------------------
By:
Name:
Title:
AMENDMENT NO. 2
EXHIBIT A
CONSENT, AGREEMENT AND AFFIRMATION OF GUARANTY.
Each of the undersigned Guarantors hereby consents to the terms of the foregoing
Amendment No. 2 and agrees that the terms of this Amendment No. 2 shall not
affect in any way its obligations and liabilities under any Loan Document, all
of which obligations and liabilities shall remain in full force and effect and
each of which is hereby reaffirmed.
HLI PARENT COMPANY, INC.
XXXXX LEMMERZ INTERNATIONAL - BOWLING GREEN, INC.
XXXXX LEMMERZ INTERNATIONAL - BRISTOL, INC.
XXXXX LEMMERZ INTERNATIONAL - CADILLAC, INC.
XXXXX LEMMERZ INTERNATIONAL - CALIFORNIA, INC.
XXXXX LEMMERZ INTERNATIONAL - COMMERCIAL HIGHWAY, INC.
XXXXX LEMMERZ INTERNATIONAL - EQUIPMENT & ENGINEERING, INC.
XXXXX LEMMERZ INTERNATIONAL - GEORGIA, INC.
XXXXX LEMMERZ INTERNATIONAL - XXXXX, INC.
XXXXX LEMMERZ INTERNATIONAL - XXXXXX, INC.
XXXXX LEMMERZ INTERNATIONAL - HUNTINGTON, INC.
XXXXX LEMMERZ INTERNATIONAL - KENTUCKY, INC.
XXXXX LEMMERZ INTERNATIONAL - LAREDO, INC.
XXXXX LEMMERZ INTERNATIONAL - MEXICO, INC.
XXXXX LEMMERZ INTERNATIONAL - MONTAGUE, INC.
XXXXX LEMMERZ INTERNATIONAL - PCA, INC.
XXXXX LEMMERZ INTERNATIONAL - PETERSBURG, INC.
XXXXX LEMMERZ INTERNATIONAL - SEDALIA, INC.
XXXXX LEMMERZ INTERNATIONAL - SOUTHFIELD, INC.
XXXXX LEMMERZ INTERNATIONAL - TECHNICAL CENTER, INC.
XXXXX LEMMERZ INTERNATIONAL - TEXAS, INC.
XXXXX LEMMERZ INTERNATIONAL - TRANSPORTATION, INC.
XXXXX LEMMERZ INTERNATIONAL - WABASH, INC.
HLI BRAKES HOLDING COMPANY, INC.
HLI COMMERCIAL HIGHWAY HOLDING COMPANY, INC.
HLI POWERTRAIN HOLDING COMPANY, INC.
HLI REALTY, INC.
HLI SERVICES HOLDING COMPANY, INC.
HLI SUSPENSION HOLDING COMPANY, INC.
HLI WHEELS HOLDING COMPANY, INC.
HLI - SUMMERFIELD REALTY CORP.
By:
---------------------------------
Name:
Title:
GUARANTORS' CONSENT TO AMENDMENT NO. 2
EXHIBIT B
ACKNOWLEDGEMENT AND CONSENT
To: Citicorp North America, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxxxx Xxxxx
Re: HLI Operating Company, Inc.
Reference is made to the Credit Agreement, dated as of June 3, 2003 (as
the same may be amended, restated, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among HLI Operating Company, Inc., a Delaware
corporation, as Borrower, Xxxxx Lemmerz International, Inc., a Delaware
corporation, as Holdings, the Lenders (as defined therein), the Issuers (as
defined therein), Citicorp North America, Inc., as administrative agent for the
Lenders and the Issuers (in such capacity, and as agent for the Secured Parties
under the other Loan Documents, the "Administrative Agent"), Xxxxxx Commercial
Paper, Inc., as syndication agent for the Lenders and the Issuers, and General
Electric Capital Corporation as documentation agent for the Lenders and Issuers.
Capitalized terms used herein and not otherwise defined herein are used herein
as defined in the Credit Agreement.
The Borrower has requested that the Lenders consent to an Amendment and
Waiver to the Credit Agreement on the terms described in Amendment No. 2 and
Waiver to the Credit Agreement ("Amendment No. 2"), the form of which is
attached hereto.
Pursuant to Section 11.1(a) of the Credit Agreement, the undersigned
Lender hereby consents to the terms of Amendment No. 2 and authorizes the
Administrative Agent to execute and deliver Amendment No. 2 on its behalf.
Very truly yours,
-----------------------------------------
(NAME OF LENDER)
By:
--------------------------------------------
Name:
Title:
Dated as of February , 2004
--
ACKNOWLEDGEMENT AND CONSENT
