FIFTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10
FIFTH
AMENDMENT TO CREDIT AGREEMENT
This
Fifth Amendment to Credit
Agreement (“Fifth Amendment”) dated as of December 12, 2007, is entered into
among Titan International, Inc. (the “Company”), the financial institutions that
are or may from time to time become parties to the Credit Agreement hereinafter
described (collectively, the “Lenders”) and LaSalle Bank National Association
(“LaSalle”), both individually as a Lender and as Administrative
Agent. Capitalized terms used herein without definition shall have
the same meanings herein as ascribed to such terms in the Credit
Agreement.
WITNESSETH:
WHEREAS,
the Company and LaSalle were
among the parties to that certain Credit Agreement dated as of July 23, 2004
(together with all amendments, exhibits, schedules, attachments and appendices
thereto, the “Credit Agreement”); and
WHEREAS,
the
Company and certain of the Lenders (or former Lenders) entered into the
First
Amendment to Credit Agreement dated as of February 16, 2005 (“First Amendment”),
the Second Amendment to Credit Agreement dated as of October 21, 2005 (the
“Second Amendment”), the Third Amendment to Credit Agreement dated June 28, 2006
(as amended by the First Amendatory Agreement to Third Amendment to Credit
Agreement dated July 31, 2006, the “Third Amendment”) and the Fourth Amendment
to Credit Agreement dated February 8, 2007 (the “Fourth Amendment”) whereby
certain changes in the terms and conditions of the Credit Agreement were
agreed
upon and made (as used herein, Credit Agreement shall mean the Credit Agreement
as modified and amended by the First Amendment, the Second Amendment, the
Third
Amendment and the Fourth Amendment); and
WHEREAS,
the Company has now requested
that the Revolving Commitment be increased to $250,000,000 in accordance
with
the accordion provisions of the Credit Agreement and the Lenders have agreed
to
such increase, subject to the terms and conditions set forth
herein.
NOW,
THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Company and Lenders hereby agree to the following, effective as of the Amendment
Effective Date (as hereafter defined):
1. The
definition of Revolving Commitment set forth in Section 1.1 of the Credit
Agreement is hereby amended in its entirety to be and to read as
follows:
“Revolving
Commitment” means
$250,000,000, as reduced from time to time pursuant to Section
6.1.
2. Section
10.1.5(a) of the Credit Agreement is hereby amended in its entirety to be
and
read as follows:
"(a)
the Company shall deliver a
Borrowing Base Certificate within twenty-five (25) days after the end of
each
calendar month if during such month the average daily balance of the Revolving
Outstandings exceeded $225,000,000.00."
3. Section
11.14.2 of the Credit Agreement is hereby amended in its entirety to be and
read
as follows:
"11.14.2
Fixed
Charge Coverage
Ratio. In the event the average daily balance of the Revolving
Outstandings exceeds $225,000,000.00 during any 30 day period ending during
any
Fiscal Quarter, not permit the Fixed Charge Coverage Ratio from the Computation
Period ending on the last day of such Fiscal Quarter to be less than 1.0
to
1.0."
4. Amended
Annex “A” and Exhibit “B” each in the form attached to this Fifth Amendment as
Annex “A” and Exhibit “B”, respectively, are hereby made a part of the Credit
Agreement in substitution and replacement of their counterparts which were
last
attached thereto.
5. The
effectiveness of this Fifth Amendment (the “Amendment Effective Date”) is
subject to the satisfaction of all of the following conditions
precedent:
(a) Lenders
shall have accepted this Fifth Amendment in the spaces provided for that
purpose
below.
(b) The
Guaranty and Collateral Agreement shall have been reaffirmed by the existing
Guarantors and Grantors, by execution and delivery of a Reaffirmation Agreement
in a form acceptable to the Agent.
(c) The
Company shall have paid to the Administrative Agent for the ratable benefit
of
the Lenders, on or before the Amendment Effective Date, the Amendment Fee
set
fourth in that certain Fee Letter from the Administrative Agent to the Company
dated December 10, 2007.
(d) The
Lenders shall have received from the Company new Notes in the amount of
$250,000,000 executed in connection with this Fifth Amendment.
(e) The
Obligors shall be in full compliance with the terms of the Credit Agreement
and other Loan Documents and no Event of Default or Default shall have occurred
or be continuing before or after giving effect to this Fifth
Amendment.
(f) Each
Loan Party shall have delivered: (A) resolutions of its board of
directors (or similar governing body) approving and authorizing such Person’s
execution, delivery and performance of this Fifth Amendment and the other
Loan
Documents to which it is party; and (B) signature and incumbency certificates
of
its officers executing this Fifth Amendment and other Loan Documents (it
being
understood that the Agent and each Lender may conclusively rely on each such
certificate until formally advised by a like certificate of any changes
therein), all certified by its secretary or an assistant secretary (or similar
officer) as being in full force and effect without modification.
(g) All
other legal matters incident to the execution and delivery hereof or
contemplated hereby, including the delivery of all additional or ancillary
documentation reasonably requested by Agent, shall be completed and satisfactory
to the Lenders and their respective counsels.
Upon
the
Amendment Effective Date, the Lenders shall cancel and return to the Company
the
Notes which were originally delivered to them by the Company at the closing
of
the Fourth Amendment to the Credit Agreement. If the Amendment
Effective Date shall not have occurred on or before December 15, 2007 this
Fifth
Amendment shall be null and void and of no further effect. Upon
receipt by Company before or after the Effective Date of one or more invoices
from Agent for expenses relating to this Fifth Agreement, the Company agrees
to
promptly pay such invoices.
6. In
order to induce the Lenders to execute and deliver this Fifth Amendment,
the
Company hereby represents to the Lenders that immediately after giving effect
to
this Fifth Amendment, each of the representations and warranties by Company
set
forth in Section 9 of the Credit Agreement (except those representations
that
relate expressly to an earlier date) are and shall be true and correct (except
that the representations contained in Section 9.4 shall be deemed to refer
to
the most recent financial statements of the Company delivered to Lenders
pursuant to Section 10.1 of the Credit Agreement) and that Company and the
Subsidiaries are and shall be in full compliance with the terms of the Credit
Agreement as so amended and the Loan Documents.
7. This
Fifth Amendment shall not be deemed a waiver of any term or condition of
the
Credit Agreement, each of which remain unchanged and in full force and
effect. Nothing herein shall be construed as a consent to any
transactions contemplated or anticipated by Company, for which Company shall
need specific consent and the approval from the Lenders, all as is provided
in
the Credit Agreement. Nothing herein shall require Agent or any
Lender to give any further consents or to provide or extend any credit
facilities other than those currently set forth in the Credit Agreement as
amended by this Fifth Amendment.
8. This
Fifth Amendment may be executed in any number of counterparts and by different
parties hereto on separate counterparts, each of which when so executed shall
be
an original but all of which shall constitute one and the same
instrument. Except as specifically waived or amended hereby, all of
the terms and conditions of the Credit Agreement shall stand and remain
unchanged and in full force and effect. The Credit Agreement, as
amended hereby and all rights and powers created thereby and thereunder or
under
any other Loan Documents are in all respects ratified and
confirmed. No reference to this Fifth Amendment need be made in any
note, instrument or other document making reference to the Credit Agreement,
any
reference to the Credit Agreement in any such note, instrument or other document
(including, without limitation, the Loan Documents) to be deemed to be a
reference to the Credit Agreement as amended hereby.
9. This
Fifth Amendment shall be binding upon and enure to the benefit of the Lenders
and the Company and their successors and assigns.
10. This
Fifth Amendment shall be construed and governed by and in accordance with
the
laws of the State of Illinois (without regard to principles of conflicts
of
laws).