RESIGNATION, WAIVER, CONSENT, APPOINTMENT AND AMENDMENT AGREEMENT
Exhibit
10.22
RESIGNATION,
WAIVER, CONSENT, APPOINTMENT
AND
AMENDMENT AGREEMENT
This
Resignation, Waiver, Consent, Appointment and Amendment Agreement (this “Agreement”) is
entered into as of December 22, 2009, by and among ▇▇▇▇▇▇ Commercial Paper Inc.
(“▇▇▇▇▇▇”), a
debtor and debtor in possession under chapter 11 of the Bankruptcy Code (defined
below) acting through one or more of its branches as the Administrative Agent
and Swing Line Lender, (in such capacities, the “Existing Agent”)
under the Credit Agreement (as defined below), Bank of America, N.A., the
Lenders party hereto, United Components, Inc. (the “Borrower”) and each
of the Guarantors signatory hereto. Defined terms in the Credit
Agreement have the same meanings where used herein, unless otherwise
defined.
RECITALS
WHEREAS,
the Borrower, certain financial institutions and other entities party thereto
from time to time as lenders (the “Lenders”), the
Existing Agent, ▇▇▇▇▇▇ Brothers Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as joint
advisors, joint lead arrangers and joint bookrunners, JPMorgan Chase Bank, N.A.,
as syndication agent, and ABN Amro Bank N.V., Bank of America, N.A., and General
Electric Capital Corporation, as co-documentation agents, have entered into that
certain Amended and Restated Credit Agreement dated as of May 25, 2006 (as
amended, restated, supplemented or otherwise modified, the “Credit
Agreement”);
WHEREAS,
On October 5, 2008, the Existing Agent commenced a voluntary case under chapter
11 of title 11 of the United States Code (the “Bankruptcy Code”) and
on such date, pursuant to section 362(a) of the Bankruptcy Code, an automatic
stay went into effect that prohibits actions to interfere with, or obtain
possession or control of, the Existing Agent’s property or to collect or recover
from the Existing Agent any debts or claims that arose before such
date;
WHEREAS,
the Existing Agent desires to resign as Administrative Agent under the Credit
Agreement and the other Loan Documents; and
WHEREAS,
the Borrower and the Required Lenders desire to ratify the appointment of Bank
of America, N.A. as successor Administrative Agent (in such capacity, the “Successor Agent”)
under the Credit Agreement and the other Loan Documents and the Successor Agent
wishes to accept such appointment.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which hereby are acknowledged, the parties hereto hereby agree as
follows:
1. Agency Resignation, Waiver,
Consent and Appointment.
(a) As
of the Effective Date (as defined below), (i) the Existing Agent hereby resigns
as the Administrative Agent as provided under Section 9.9 (Successor
Administrative Agent) of the Credit Agreement and shall have no further
obligations under the Loan Documents in such capacities; (ii) the Required
Lenders hereby appoint Bank of America, N.A. as successor Administrative Agent
under the Credit Agreement and the other Loan Documents; (iii) the Borrower and
Required Lenders hereby waive any notice requirement provided for under the Loan
Documents in respect of such resignation or appointment; (iv) the Borrower and
Required Lenders hereby consent to the appointment of the Successor Agent; (v)
Bank of America, N.A. hereby accepts its appointment as Successor Agent; (vi)
the Successor Agent shall bear no responsibility for any actions taken or
omitted to be taken by the Existing Agent while it served as Administrative
Agent and Swing Line Lender under the Credit Agreement and the other Loan
Documents and (vii) each of the Existing Agent and each Loan Party authorizes
the Successor Agent to file any Uniform Commercial Code assignments or
amendments with respect to the Uniform Commercial Code Financing Statements,
mortgages, and other filings in respect of the Collateral as the Successor Agent
deems necessary or desirable to evidence the Successor Agent's succession as
Administrative Agent under the Credit Agreement and the other Loan Documents and
each party hereto agrees to execute any documentation reasonably necessary to
evidence such succession; provided that the Existing Agent shall bear no
responsibility for any actions taken or omitted to be taken by the Successor
Agent under this clause (vii). For the avoidance of doubt, under no
circumstances does the Successor Agent assume, nor shall the Successor Agent be
deemed to assume or be responsible for (i) any obligations of the Administrative
Agent under or pursuant to any Loan Document arising prior to the Effective Date
or (ii) any claim of any nature arising at any time or from time to time against
▇▇▇▇▇▇ as Administrative Agent or Swing Line Lender or in any other capacity
under or with respect to any Loan Documents or this Agreement or the
transactions contemplated thereby or hereby.
(b) The
parties hereto hereby confirm that the Successor Agent succeeds to the Credit
Agreement and becomes vested with all of the rights, powers, privileges and
duties of the Administrative Agent under each of the Loan Documents, and the
Existing Agent is discharged from all of its duties and obligations as the
Administrative Agent under the Credit Agreement or the other Loan Documents, in
each case, as of the Effective Date.
(c) The
parties hereto hereby confirm that, as of the Effective Date, all of the
provisions of the Credit Agreement, including, without limitation, Section 9 (The Agents), and
Section 10.5 (Payment of
Expenses) to the extent they pertain to the Existing Agent, continue in
effect for the benefit of the Existing Agent, its sub-agents and their
respective affiliates in respect of any actions taken or omitted to be taken by
any of them while the Existing Agent was acting as Administrative Agent and
inure to the benefit of the Existing Agent.
(d) The
Existing Agent hereby assigns to the Successor Agent each of the Liens and
security interests assigned to the Existing Agent under the Loan Documents and
the Successor Agent hereby assumes all such Liens, for its benefit and for the
benefit of the Secured Parties.
(e) On
and after the Effective Date, all possessory collateral held by the Existing
Agent for the benefit of the Lenders shall be deemed to be held by the Existing
Agent as agent and bailee for the Successor Agent for the benefit of the Lenders
until such time as such possessory collateral has been delivered to the
Successor Agent. Notwithstanding anything herein to the contrary,
each Loan Party agrees that all of such Liens granted by any Loan Party and
existing on the Effective Date, shall in all respects be continuing and in
effect and are hereby ratified and reaffirmed by each Loan
Party. Without limiting the generality of the foregoing, any
reference to the Existing Agent on any publicly filed document, to the extent
such filing relates to the liens and security interests in the Collateral
assigned hereby and until such filing is modified to reflect the interests of
the Successor Agent, shall, with respect to such liens and security interests,
constitute a reference to the Existing Agent as collateral representative of the
Successor Agent (provided, that the parties hereto agree that the Existing
Agent's role as such collateral representative shall impose no duties,
obligations, or liabilities on the Existing Agent, including, without
limitation, any duty to take any type of direction regarding any action to be
taken against such Collateral, whether such direction comes from the Successor
Agent, the Required Lenders, or otherwise and the Existing Agent shall have the
full benefit of the protective provisions of Section 9 (The Agents) while serving in
such capacity). The Successor Agent agrees to take possession of any
possessory collateral delivered to the Successor Agent following the Effective
Date upon tender thereof by the Existing Agent.
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2. Amendment. The Credit
Agreement is, effective as of the Effective Date, hereby amended as
follows:
(a) Section 1.01 of the Credit
Agreement is hereby amended as follows:
(i) The
definition of “Administrative Agent” is hereby deleted in its entirety and
replaced with the following:
“Administrative Agent”
means Bank of America, N.A., in its capacity as administrative agent for the
Lenders under the Loan Documents, and its successors and assigns.
(ii) The
definition of “Base Rate” is hereby deleted in its entirety and replaced with
the following:
“Base Rate”: for any
day, a rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%)
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus ½ of 1%. Any
change in the Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
(iii) The
definition of “Eurodollar Base Rate” is hereby deleted in its entirety and
replaced with the following:
“Eurodollar Base
Rate”: the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as
published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time to
time) at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest
Period. If such rate is not available at such time for any reason,
then the "Eurodollar Base Rate" for such Interest Period shall be the rate per
annum determined by the Administrative Agent to be the rate at which deposits in
Dollars for delivery on the first day of such Interest Period in same day funds
in the approximate amount of the Eurodollar Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America's London Branch to major banks in the London
interbank eurodollar market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest
Period
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(iv) The
definition of “▇▇▇▇▇▇ Entity” in Section 1.01 (Defined Terms)
is hereby deleted in its entirety.
(v) The
following definitions are hereby added to Section 1.01 in appropriate
alphabetical order:
“Agent Parties” shall
have the meaning set forth in Section 10.21.
“Bank of
America”: Bank of America, N.A. and its
successors.
“Borrower Materials”
shall have the meaning set forth in Section 10.21.
“Platform” shall have
the meaning set forth in Section 10.21.
“Prime Rate” means the
rate of interest in effect for such day as publicly announced from time to time
by Bank of America as its “prime rate.” The “prime rate” is a rate
set by Bank of America based upon various factors including Bank of America's
costs and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced at, above,
or below such announced rate.
(b) Section 9.9 of the Credit
Agreement is hereby deleted in its entirety and replaced with the
following:
9.9 Successor Administrative
Agent. The Administrative Agent may at any time give written
notice of its resignation to the Lenders and the Borrower. Upon
receipt of any such notice of resignation, the Required Lenders shall have the
right, with the consent of the Borrower (such consent not to be unreasonably
withheld or delayed and such consent not to be required if an Event of Default
under Section 8(a) or 8(f) with respect to the Borrower shall have occurred and
be continuing), to appoint a successor, which shall be a bank with an office in
the United States, or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may on behalf of the Lenders appoint a
successor Administrative Agent meeting the qualifications set forth above with
the consent of such successor and with the consent of the Borrower (such consent
not to be unreasonably withheld or delayed and such consent not to be required
if an Event of Default under Section 8(a) or 8(f) with respect to the Borrower
shall have occurred and be continuing). If the Administrative Agent
shall notify the Borrower and the Lenders that no qualifying Person has accepted
such appointment by the date that is 60 days after such notice of resignation,
then such resignation shall nonetheless become effective in accordance with such
notice and (a) the retiring Administrative Agent shall be discharged from
its duties and obligations hereunder and under the other Loan Documents (except
that in the case of any collateral security held by the Administrative Agent on
behalf of the Lenders under any of the Loan Documents, the retiring
Administrative Agent, if requested by the Lenders and the Borrower, shall
continue to hold such collateral security until such time as a successor
Administrative Agent is appointed), (b) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above
in this Section and (c) the retiring Administrative Agent shall reimburse the
Borrower, as of the effective date of resignation, a pro rata portion of the
annual agency fee previously paid by the Borrower to the Administrative Agent
for the period during which the resignation becomes effective. Upon
the acceptance of a successor's appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring (or retired) Administrative Agent,
and the retiring Administrative Agent shall be discharged from all of its duties
and obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section). After the
retiring Administrative Agent's resignation hereunder and under the other Loan
Documents, the provisions of this Section 9 and Section 10.5 shall continue
in effect for the benefit of such retiring Administrative Agent, its sub-agents
and their respective Affiliates and the partners, directors, officers,
employees, agents, trustees and advisors of each such Person and of such
Person’s Affiliates in respect of any actions taken or omitted to be taken by
any of them while the retiring Administrative Agent was acting as Administrative
Agent.
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(c) Section 10.2 of the Credit
Agreement is hereby amended by deleting the address set forth next to the
heading “The Administrative Agent:” and replacing it with the
following:
For payments and Requests
for Credit Extensions:
Bank of
America, N.A.
Mail
Code: NC1-001-04-39
One
Independence Center
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇
▇▇▇▇▇ (Electronic Mail: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇;
Telecopy No.
(▇▇▇)
▇▇▇-▇▇▇▇)
For other
notices:
Bank of
America, N.A.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
Mail
Code: CA5-701-05-19
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇ (Electronic Mail: ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇;
Telecopy No.
(▇▇▇)
▇▇▇-▇▇▇▇)
(d) The
first sentence of Section
10.6(e) of the Credit Agreement is hereby deleted in its entirety and
replaced with the following:
Upon its
receipt of an Assignment and Acceptance executed by an Assignor and an Assignee
(and, in any case where the consent of any other Person is required by Section
10.6(c), by each such other Person) together with payment to the Administrative
Agent of a registration and processing fee of $3,500 (treating multiple,
simultaneous assignments by or to two or more Related Funds as a single
assignment); provided, however, that the
Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment (it being agreed that the
Administrative Agent will waive such processing and recordation fee in the case
of any assignment by a Lender to an Affiliate or Related Fund of such
Lender).
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(e) The
following new Sections are hereby added to the end of Section 10 of the Credit
Agreement:
10.20 No Advisory or Fiduciary
Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment,
waiver or other modification hereof or of any other Loan Document), each of the
Loan Parties acknowledges and agrees, and acknowledges its Affiliates'
understanding, that: (a) (i) the arranging and other services regarding this
Agreement provided by the Administrative Agent are arm's-length commercial
transactions between the Loan Parties and their respective Affiliates, on the
one hand, and the Administrative Agent, on the other hand, (ii) each of the Loan Parties
has consulted its own legal, accounting, regulatory and tax advisors to the
extent it has deemed appropriate, and (iii) each of the Loan Parties is capable
of evaluating, and understands and accepts, the terms, risks and conditions of
the transactions contemplated hereby and by the other Loan Documents; b) (i) the
Administrative Agent is and has been acting solely as a principal and, except as
expressly agreed in writing by the relevant parties, has not been, is not, and
will not be acting as an advisor, agent or fiduciary for the Loan Parties or any
of their respective Affiliates, or any other Person and (ii) the Administrative
Agent has no obligation to the Loan Parties or any of their respective
Affiliates with respect to the transactions contemplated hereby except those
obligations expressly set forth herein and in the other Loan Documents; and
(iii) the Administrative Agent and its Affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the Loan
Parties and their respective Affiliates, and neither the Administrative Agent
nor any of its Affiliates has any obligation to disclose any of such interests
to the Loan Parties and their respective Affiliates. To the fullest
extent permitted by law, each of the Loan Parties hereby
waives and releases any claims that it may have against the Administrative Agent
with respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.
10.21 The
Platform. The Borrower hereby acknowledges that (a) the
Administrative Agent will make available to the Lenders materials and/or
information provided by or on behalf of the Borrower hereunder (collectively,
“Borrower
Materials”) by posting the Borrower Materials on Intralinks or other
similar electronic system (the “Platform”) and (b)
certain of the Lenders (each a "Public Lender") may
have personnel who do not wish to receive material non-public information with
respect to the Borrower or its Affiliates, or the respective securities of any
of the foregoing, and who may be engaged in investment and other market-related
activities with respect to such Persons' securities. The Borrower
hereby agrees that so long as the Borrower is the issuer of any outstanding debt
or equity securities that are registered or issued pursuant to a private
offering or is actively contemplating issuing any such securities (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked "PUBLIC" which, at a minimum, shall mean that
the word "PUBLIC" shall appear prominently on the first page thereof; (x) by
marking Borrower Materials "PUBLIC," the Borrower shall be deemed to have
authorized the Administrative Agent and the Lenders to treat such Borrower
Materials as not containing any material non-public information with respect to
the Borrower or its securities for purposes of United States federal and state
securities laws; (y) all Borrower Materials marked "PUBLIC" are permitted to be
made available through a portion of the Platform designated as "Public Side
Information;" and (z) the Administrative Agent shall be entitled to treat any
Borrower Materials that are not marked "PUBLIC" as being suitable only for
posting on a portion of the Platform that is not marked as "Public Side
Information." Notwithstanding the foregoing, the Borrower shall be
under no obligation to ▇▇▇▇ any Borrower Materials "PUBLIC."
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THE
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES
(AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR
ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT
PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In
no event shall the Administrative Agent or any of its Affiliates or the
partners, directors, officers, employees, agents, trustees and advisors of the
Administrative Agent or of its Affiliates (collectively, the “Agent Parties”) have
any liability to the Borrower, any Lender or any other Person for losses,
claims, damages, liabilities or expenses of any kind (whether in tort, contract
or otherwise) arising out of the Borrower's or the Administrative Agent’s
transmission of Borrower Materials through the Internet, except to the extent
that such losses, claims, damages, liabilities or expenses are determined by a
court of competent jurisdiction by a final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Agent Party;
provided, however, that in no
event shall any Agent Party have any liability to the Borrower, any Lender or
any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).
10.22 Electronic Execution of
Assignments and Certain Other Documents. The words
“execution,” “signed,” “signature,” and words of like import in any Assignment
and Assumption or in any amendment or other modification hereof (including
waivers and consents) shall be deemed to include electronic signatures or the
keeping of records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature or the use
of a paper-based recordkeeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform Electronic
Transactions Act.
(f) Replacement Credit Agreement
Schedules. Schedule 1.1, Schedule 4.6 and
Schedule 4.18
of the Existing Credit Agreement are hereby amended in their entireties to read
as set forth on Schedule 1.1, Schedule 4.6 and
Schedule
4.19(b) attached as Exhibit A hereto, and
the information contained therein is true, complete and accurate as of the date
hereof.
(g) Replacement Guarantee and
Collateral Agreement Schedules. Schedules 1 through
6 of the
Guarantee and Collateral Agreement are hereby amended in their entireties to
read as set forth on Schedules 1 through
6 attached as
Exhibit B
hereto, and the information contained therein is true, complete and accurate as
of the date hereof.
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3. Acknowledgment of
Termination of Revolving Credit Facility. The parties hereto
acknowledge and agree that the Revolving Credit Termination Date has passed, the
Revolving Credit Commitment has terminated, all Revolving Credit Loans have been
repaid, all Letters of Credit issued pursuant to the Credit Agreement have been
terminated and the Swing Line Commitment has terminated. As a result
of the foregoing, ▇▇▇▇▇▇ is no longer acting as the Swing Line Lender and Bank
of America, N.A. does not assume pursuant to this Agreement the capacity of
Swing Line Lender. Neither ▇▇▇▇▇▇ nor Bank of America, N.A. is an
Issuing Lender.
4. Representations and
Warranties.
(a) ▇▇▇▇▇▇
hereby represents and warrants that it is legally authorized to enter into and
has duly executed and delivered this Agreement.
(b) Successor
Agent hereby represents and warrants that it is legally authorized to enter into
and has duly executed and delivered this Agreement.
(c) The
Borrower hereby represents and warrants that (i) it is legally authorized to
enter into and has duly executed and delivered this Agreement, (ii) no Default
or Event of Default has occurred and is continuing, including,
specifically, Section 6.5
(Maintenance of Property; Insurance), Section 6.10 (Additional Collateral,
etc.), Section 6.11
(Further Assurances), and Section 6.12 (Collateral
Covenants), or will exist immediately after giving effect to this
Agreement, (iii) the representations and warranties set forth in Article 4 (Representations and
Warranties) of the Credit Agreement and in the Guarantee and Collateral
Agreement and other Loan Documents, including, specifically, Section 4.8 (Ownership of Property;
Liens), Section 4.9
(Intellectual Property), 4.15 (Subsidiaries), Section 4.19 (Security
Documents), and Section
4.21 (Senior Indebtedness) are true and correct on and as of the
Effective Date with the same effect as though made on and as of the Closing Date
(as defined in the Credit Agreement), except to the extent such representations
and warranties expressly relate to an earlier date, in which case such
representations and warranties were true and correct in all material respects as
of such earlier date; (iv) Schedule 2 contains a
complete list of all possessory Collateral and security filings related to the
Collateral delivered to the Existing Agent and held by the Existing Agent as of
the Effective Date; (v) the actions described in Schedule 3 hereto
have been performed on or prior to the date hereof, and (vi) all security
interests created in favor of the Existing Agent for the benefit of the secured
parties under the Loan Documents are valid security interests in the Collateral,
as security for the Obligations.
5. Conditions Precedent to
Effectiveness. The obligations of the parties hereto set forth
in Section 1 hereof shall become effective immediately upon the date (the “Effective Date”) when
each of the following conditions shall first have been satisfied:
(a) The
Borrower, each other Loan Party, the Existing Agent, the Successor Agent and the
Required Lenders shall have executed and delivered this Agreement;
(b) The
Existing Agent shall have received from the Borrower payment, free and clear of
any recoupment or set-off, in immediately available funds of all amounts payable
to it as the Existing Agent and as a Lender pursuant to the Loan Documents
(including fees and expenses of counsel invoiced to the Borrower).
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(c) The
Borrower shall have paid to Bank of America, N.A. all amounts due and payable
under the letter agreement dated as of October 15, 2009 between the Borrower and
Bank of America, N.A.;
(d) The
Loan Parties shall have executed and delivered, or caused to be executed and
delivered, such instruments, certificates or documents, and shall have taken all
such actions, as Bank of America shall have reasonably requested for the purpose
of transferring from ▇▇▇▇▇▇ to Bank of America the rights of the Administrative
Agent and the secured parties with respect to the Collateral under the Loan
Documents;
(e) The
Successor Agent shall have received, and shall have confirmed in writing to
▇▇▇▇▇▇ that it has received, the items set forth on Schedule 2 hereto;
and
(f) The
Successor Agent shall have confirmed in writing to ▇▇▇▇▇▇ that the Existing
Agent has completed each of the tasks listed on Schedule 4
hereto.
6. Release. Each
of the Loan Parties, ▇▇▇▇▇▇ and the Lenders hereby unconditionally and
irrevocably waive all claims, suits, debts, liens, losses, causes of action,
demands, rights, damages or costs, or expenses of any kind, character or nature
whatsoever, fixed or contingent, which any of them may have or claim to have
against Bank of America (in its capacity as Successor Agent, a Lender, hedging
counterparty, or any other capacity under the Loan Documents) or its agents,
employees, officers, affiliates, directors, representatives, attorneys,
successors and assigns (collectively, the “BofA Released
Parties”) to the extent arising (i) at any time prior to the
Effective Date out of or in connection with the Loan Documents or (ii) out
of any actions or inaction (x) by ▇▇▇▇▇▇ prior to the Effective Date (including
resulting in any defect, insufficiency or failure to perfect in Collateral) or
(y) by Bank of America at any time in reliance on information furnished to it on
or prior to the Effective Date with respect to the Register, the Collateral or
any other matter under the Loan Documents (collectively, the “BofA
Claims”). Each of the Loan Parties, ▇▇▇▇▇▇ and the Lenders
further agree forever to refrain from commencing, instituting or prosecuting any
lawsuit, action or other proceeding against any BofA Released Parties with
respect to such BofA Claims. Each of the BofA Released Parties shall
be a third party beneficiary of this Agreement. The foregoing waiver
does not alter any contractual obligation under the Loan Documents of the BofA
Released Parties existing immediately prior to the existence of this
Agreement.
7. Further
Assurances.
(a) Without
limiting their obligations in any way under any of the Loan Documents, the
Borrower reaffirms and acknowledges its obligations to the Successor Agent with
respect to the Credit Agreement and the other Loan Documents and that the
delivery of any agreements, instruments or any other document and any other
actions taken or to be taken shall be to the satisfaction of Successor
Agent.
(b) Each
of the Borrower and the Existing Agent agrees that, following the Effective
Date, it shall furnish, at the Borrower’s expense, additional releases,
amendment or termination statements and such other documents, instruments and
agreements as are customary and may be reasonably requested by the Successor
Agent in order to effect and evidence more fully the matters covered
hereby.
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(c) The
Borrower shall reimburse the Existing Agent for all reasonable out-of-pocket
costs and expenses incurred by the Existing Agent in connection with any actions
taken pursuant to this Agreement.
8. Successors and
Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of the Existing Agent, the
Lenders, the Secured Parties and the Borrower.
9. Limitation. Each
party hereto hereby agrees that this Agreement (i) does not impose on the
Existing Agent affirmative obligations or indemnities not existing, as of the
date of its petition commencing its proceeding under chapter 11 of the
Bankruptcy Code, and that could give rise to administrative expense claims, and
(ii) is not inconsistent with the terms of the Credit
Agreement.
10. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which taken together shall be one and the
same instrument.
11. Headings. The
paragraph headings used in this Agreement are for convenience only and shall not
affect the interpretation of any of the provisions hereof.
12. Interpretation. This
Agreement is a Loan Document for the purposes of the Credit
Agreement.
13. Confidentiality. Schedule 1 and Schedule 2 to this
Agreement are exclusively for the information of the parties hereto and the
information therein may not be disclosed to any third party or circulated or
referred to publicly without our prior written consent of ▇▇▇▇▇▇.
14. Confirmation of
Guaranties. By signing this Agreement, each Loan Party hereby
confirms that (i) the obligations of the Loan Parties under the Credit Agreement
as modified hereby and the other Loan Documents (x) are entitled to the benefits
of the guarantees set forth in the Guarantee and Collateral Agreement and (y)
constitute Obligations, and (ii) notwithstanding the effectiveness of the terms
hereof, the Guarantee and Collateral Agreement is, and shall continue to be, in
full force and effect and is hereby ratified and confirmed in all
respects.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
[Signature
page follows]
10
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the date first written above.
|
UNITED
COMPONENTS, INC.,
|
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as
Borrower
|
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By:
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
|
||
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Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
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Title:
|
Vice President
|
||
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UCI
ACQUISITION HOLDINGS, INC.
|
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By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
|
||
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Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Title:
|
Vice President
|
||
|
CHAMPION
LABORATORIES, INC.
|
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By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
|
||
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Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Title:
|
Assistant Treasurer
|
||
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UCI
PENNSYLVANIA, INC. (f/k/a Neapco Inc.)
|
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|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Title:
|
Treasurer
|
||
|
▇▇▇▇▇
MANUFACTURING, L.P.
|
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|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Title:
|
Assistant Treasurer
|
||
|
AIRTEX
PRODUCTS, LP
|
|||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Title:
|
Treasurer
|
||
|
AIRTEX
INDUSTRIES, LLC
|
|||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Title:
|
Assistant Treasurer
|
||
|
FUEL
FILTER TECHNOLOGIES, INC.
|
|||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Title:
|
Treasurer
|
||
|
UCI-AIRTEX
HOLDINGS, INC.
|
|||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Title:
|
Assistant Treasurer
|
||
|
UCI
INVESTMENTS, L.L.C.
|
|||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Title:
|
Assistant Treasurer
|
||
|
UCI-▇▇▇▇▇
HOLDINGS, L.L.C.
|
|||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Title:
|
Assistant Treasurer
|
||
|
▇▇▇▇▇
MEXICO HOLDINGS CORP.
|
|||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Title:
|
Assistant Treasurer
|
||
|
ASC
HOLDCO, INC.
|
|||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Title:
|
Assistant Treasurer
|
||
|
ASC
INDUSTRIES, INC.
|
|||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Title:
|
Assistant Treasurer
|
||
|
ASC
INTERNATIONAL INCORPORATED
|
|||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Title:
|
Assistant Treasurer
|
||
|
▇▇▇▇▇▇
COMMERCIAL PAPER, INC.,
|
||||
|
as
Existing Agent
|
||||
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
|||
|
Title:
|
Authorized
Signatory
|
|||
|
▇▇▇▇▇▇
COMMERCIAL PAPER, INC.,
|
||||
|
as
a Lender
|
||||
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
|||
|
Title:
|
Authorized
Signatory
|
|||
|
BANK
OF AMERICA, N.A.,
|
||||
|
as
Successor Agent
|
||||
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇
|
|||
|
Title:
|
Vice
President
|
|||