EXHIBIT 10.23
AMENDMENT NO. 1, WAIVER AND CONSENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDMENT NO. 1, WAIVER AND CONSENT dated as of October
__, 2005 (this "Amendment No. 1"), among HLI OPERATING COMPANY, INC., a Delaware
corporation (the "Borrower"), ▇▇▇▇▇ LEMMERZ INTERNATIONAL, INC., a Delaware
corporation ("Holdings"), and CITICORP NORTH AMERICA, INC. ("CNAI"), as
Administrative Agent on behalf of each Lender executing a Lender Consent (as
defined below) amends certain provisions of the Amended and Restated Credit
Agreement, dated as of April 11, 2005 (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 Agent for the First Lien Lenders (as defined
therein), CNAI, as Agent for the Term C Lenders (as defined therein), CNAI, as
Collateral Agent for the Secured Parties, ▇▇▇▇▇▇ COMMERCIAL PAPER INC., as
Syndication Agent, GENERAL ELECTRIC CAPITAL CORPORATION, as Documentation Agent,
and CITIGROUP GLOBAL MARKETS INC. and ▇▇▇▇▇▇ BROTHERS INC., as Joint
Book-Running Lead Managers and Joint Lead Arrangers.
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders agree to
amend certain provisions of the Credit Agreement;
WHEREAS, the Borrower 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, the Borrower desires that certain of its Subsidiaries
enter into the transactions described on Annex A hereto (collectively, the
"Specified Transactions") and has requested that the Administrative Agent and
the Requisite Lenders consent to the Specified Transactions;
WHEREAS, pursuant to Section 11.1(a) (Amendments, Waivers,
Etc.) of the Credit Agreement, the consent of the Requisite Lenders is required
to effect the amendments set forth herein;
WHEREAS, the Lenders party to the Lenders' Consent
(constituting the Requisite Lenders) and the Administrative Agent agree, subject
to the limitations and conditions set forth herein, to (a) consent to the
Specified Transactions and (b) amend the Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the above premises, the
Borrower and the Administrative Agent, at the direction of the Lenders
constituting the Requisite Lenders, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Unless otherwise defined herein, capitalized terms
used herein shall have the meanings ascribed to such terms in the Credit
Agreement.
ARTICLE II
CONSENT AND WAIVER
Section 2.1 Effective as of the Amendment Effective Date and
subject the satisfaction (or due waiver) of the conditions set forth in Article
VI (Conditions Precedent to the Effectiveness of this Amendment No. 1) hereof,
the Lenders party to the Lenders' Consent, constituting the Requisite Lenders,
and the Administrative Agent hereby consent to the Specified Transactions
described on Annex A and agree that the Specified Transactions shall not
constitute "Investments" or "Asset Sales" for purposes of the limitations in
Sections 8.3 (Investments) and 8.4 (Sale of Assets) of the Credit Agreement.
ARTICLE III
AMENDMENT TO ARTICLE II
(DEFINED TERMS)
Section 3.1 New Definitions. The following defined terms shall
be inserted in the correct alphabetical order in Section 1.1 (Defined Terms):
"Foreign Receivables Purchase Program" means, with
respect to any Foreign Subsidiary, an agreement or other
arrangement or program providing for the sale on a
non-recourse basis (other than Guaranty Obligations permitted
under Section 8.1(c)(ii) (Indebtedness)) of Receivables Assets
in exchange for the advance of funds to such Foreign
Subsidiary and/or one or more of its Subsidiaries pursuant to
documentation (including customary performance guaranties)
reasonably acceptable to the First Lien Agent (including,
without limitation, an intercreditor agreement); provided,
however, that, with respect to the German Foreign Receivables
Purchase Program, recourse by MHB Financial Services GmbH &
Co. KG, Eschborn to ▇▇▇▇▇ Lemmerz Werke GmbH shall be
permitted in an aggregate amount not to exceed 5% of the
amount of Receivables Assets sold pursuant to the German
Foreign Receivables Purchase Program.
"German Foreign Receivables Purchase Program" means
the revolving Foreign Receivables Purchase Program in an
amount not to exceed SUM20,000,000 at any one time, pursuant
to which ▇▇▇▇▇ Lemmerz Werke GmbH shall sell and assign
certain Receivables Assets to MHB Financial Services GmbH &
Co. KG, Eschborn.
Section 3.2 The following defined terms listed in Section 1.1
(Defined Terms) of the Credit Agreement are amended as follows:
Indebtedness. The definition of "Indebtedness" shall
be amended by (a) inserting the words "or a Foreign
Receivables Purchase Program" at the end of the parentheticals
in the second and fourth lines thereof and (b) inserting the
words "or Foreign Receivables Purchase Program" after the
words "conveyed in accordance with any Securitization Program"
in the twenty-fourth line thereof.
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ARTICLE IV
AMENDMENT TO ARTICLE VIII
(NEGATIVE COVENANTS)
Section 4.1 Indebtedness.
(a) Section 8.1 (Indebtedness) of the Credit Agreement
shall be amended by replacing clause (c) thereof in its entirety as follows:
"(c) Guaranty Obligations incurred by the Borrower,
any Guarantor or any Foreign Subsidiary in respect of (i) with
respect to the Borrower or any Guarantor, Indebtedness of the
Borrower or any Guarantor that is permitted by this Section
8.1 and (ii) with respect to any Foreign Subsidiary,
Indebtedness permitted by Section 8.1(o)(i)(B) to the extent
that the applicable Administrative Agent has consented (in its
sole discretion, exercised reasonably) to such incurrence;
provided, however, that the aggregate outstanding amount of
all such Guaranty Obligations incurred by the Foreign
Subsidiaries, with respect to Foreign Receivables Purchase
Programs, shall not exceed $10,000,000; and, provided,
further, that the Guaranty Obligations permitted under clause
(ii) above may not be in respect of Indebtedness owed to the
Administrative Agent or any of its Affiliates."
(b) Section 8.1 (Indebtedness) of the Credit Agreement
shall be amended by replacing clause (o) thereof in its entirety as follows:
"Indebtedness (i) arising under any Securitization
Program or Foreign Receivables Purchase Program; provided,
however, that (A) the aggregate outstanding amount of all such
Indebtedness (not including any amount described in clause
(iii) of this Section 8.1(o)) shall not exceed $100,000,000
(regardless of the amount of accounts receivable sold,
securitized or collateralized thereunder) and (B) with respect
to any Foreign Receivables Purchase Program, the aggregate
amount of all such Indebtedness shall not exceed $50,000,000
(regardless of the amount of accounts receivable sold or
collateralized thereunder), (ii) arising from intercompany
loans from the Borrower or any of its Subsidiaries that sells
Receivables Assets to a Securitization SPV and (iii)
consisting of renewals, extensions, refinancings, replacements
and refundings of Indebtedness permitted by this Section
8.1(o); provided, however, that any such renewal, extension,
refinancing, replacement or refunding is on market terms and
is in an aggregate outstanding principal amount not to exceed
the amount set forth in the preceding clause (i) of this
Section 8.1(o); or"
Section 4.2 Liens, Etc,
Section 8.2 (Liens, Etc.) of the Credit Agreement shall be
amended by replacing clause (j) thereof in its entirety as follows:
"(j) Liens arising pursuant to, or assignments in
connection with, any Securitization Program or Foreign
Receivables Purchase Program solely with respect to
Receivables Assets securitized or sold, as the case may be,
thereunder."
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Section 4.3 Sale of Assets
Section 8.4 (Sale of Assets) of the Credit Agreement shall be
amended by inserting the words "or Foreign Receivables Purchase Program" after
the words "pursuant to a Securitization Program" in the second line of clause
(j) thereof.
Section 4.4 Prepayment and Cancellation of Indebtedness
(a) Section 8.6 (Prepayment and Cancellation of Indebtedness)
of the Credit Agreement shall be amended by inserting the words "or a Foreign
Receivables Purchase Program" after the words "Indebtedness incurred pursuant to
a Securitization Program" in the sixteenth and nineteenth lines of clause (b)
thereof.
(b) Section 8.6 (Prepayment and Cancellation of Indebtedness)
of the Credit Agreement shall be amended by inserting the words "or Foreign
Receivables Purchase Program" after the words "any Securitization Program" in
the second line of clause (c) thereof.
Section 4.5 Limitations on Restrictions on Subsidiary
Distributions; No New Negative Pledges.
Section 8.10 (Limitations on Restrictions on Subsidiary
Distributions; No New Negative Pledges) of the Credit Agreement shall be amended
by inserting the words "or Foreign Receivables Purchase Program" after the words
"in connection with a permitted Securitization Program" in the second line
thereof.
ARTICLE V
AMENDMENT TO ARTICLE IX
(EVENTS OF DEFAULT)
Section 5.1 Events of Default.
Section 9.1 (Events of Default) of the Credit Agreement shall
be amended by inserting the words "or Foreign Receivables Purchase Program"
after the words "in connection with any Securitization Program" in the second
line of clause (n) thereof.
ARTICLE VI
CONDITIONS PRECEDENT TO THE EFFECTIVENESS
OF THIS AMENDMENT NO. 1.
Section 6.1 Effectiveness. This Amendment No. 1 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"):
(a) 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. 1 executed by the Borrower and
Holdings;
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(ii) the Consent and Agreement in the form attached
hereto as Exhibit A, executed by each of the Guarantors;
(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.
(b) Fees and Expenses. The Borrower shall have paid:
(i) unless otherwise agreed by the Administrative
Agent, all outstanding fees, costs and expenses owing to the
Administrative Agent, including the reasonable fees, expenses and
disbursements of all legal counsel for the Administrative Agent; and
(ii) the legal fees set forth on Annex B hereto.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Subsidiary Guarantors. The 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 7.2 Reference to and Effect on the Loan Documents.
(a) On and after the Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement," "hereunder," "hereof,"
"herein," or words of like import, and each reference in the other Loan
Documents to the Credit Agreement, shall mean and be a reference to the Credit
Agreement as amended hereby, and this Amendment No. 1 and the Credit Agreement
shall be read together and construed as a single instrument. The table of
contents, signature pages and list of Exhibits and Schedules of the Credit
Agreement shall be modified as necessary to reflect the changes made in this
Amendment No. 1 as of the Amendment Effective Date.
(b) 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.
(c) The execution, delivery and effectiveness of this
Amendment No. 1 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.
(d) This Amendment No. 1 is a Loan Document.
Section 7.3 Costs and Expenses. The Borrower agrees to pay on
demand in accordance with the terms of Section 11.3 (Costs and Expenses) of the
Credit Agreement all costs and expenses of the Administrative Agent in
connection with the preparation, reproduction, execution and
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delivery of this Amendment No. 1, and all other Loan Documents entered into in
connection herewith, including the reasonable fees, expenses and disbursements
of Weil, Gotshal & ▇▇▇▇▇▇ LLP and other counsel for the Administrative Agent
with respect thereto.
Section 7.4 Titles. The Section titles contained in this
Amendment No. 1 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 7.5 Execution in Counterparts. This Amendment No. 1
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 7.6 Notices. All communications and notices to the
Administrative Agent hereunder shall be given as provided in the Credit
Agreement.
Section 7.7 Severability. If any term or provision set forth
in this Amendment No. 1 shall be invalid or unenforceable, the remainder of this
Amendment No. 1, 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 7.8 Successors. The terms of this Amendment No. 1
shall be binding upon, and shall inure to the benefit of, the parties hereto and
their respective successors or assigns.
Section 7.9 Governing Law. This Amendment No. 1 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]
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IN WITNESS WHEREOF, this Amendment No. 1 has been duly executed on the
date set forth above.
HLI Operating Company Inc.,
as Borrower
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇▇ Lemmerz International, Inc.,
as Holdings
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
CITICORP NORTH AMERICA INC.,
as Administrative Agent
By:
Name:
Title:
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