Exhibit 99.1
AMENDMENT NO. 5 AND CONSENT dated as of May 16, 2005 (this
"Consent"), to the Credit Agreement dated as of November 28, 2000
(as amended and restated as of June 20, 2002, and as further
amended and modified to the date hereof, the "Credit Agreement"),
among METALDYNE CORPORATION ("Holdings"), METALDYNE COMPANY LLC
(the "Parent Borrower"), the Foreign Subsidiary Borrowers party
thereto (together with Holdings and the Parent Borrower, the
"Borrowers"), the financial institutions party to the Credit
Agreement as lenders (the "Lenders"), JPMORGAN CHASE BANK, N.A.
("JPMCB") as Administrative Agent and Collateral Agent, CREDIT
SUISSE FIRST BOSTON, as Syndication Agent and COMERICA BANK,
FIRST UNION NATIONAL BANK, NATIONAL CITY BANK and BANK ONE, NA,
each as Documentation Agent.
A. Reference is made to the form of Intercreditor Agreement attached hereto
as Annex 1 (the "Intercreditor Agreement"), anticipated to be entered into by
General Electric Capital Corporation, as Receivables Purchase Agent, and JPMCB,
as Lenders' Agent.
B. Holdings and the Borrowers have requested that the Required Lenders (1)
consent to permit Holdings, the Originators and the Receivables Seller to enter
into the Receivables Purchase Agreement and the Receivables Transfer Agreement
(as applicable) (collectively, the "Receivables Facility"), and to consummate
the transactions contemplated thereby, (2) consent to permit Holdings, the
Originators and the Receivables Seller to enter into the Replacement Facility as
contemplated in Section 2.17(b) of the Intercreditor Agreement, and to
consummate the transactions contemplated thereby, and (3) authorize the JPMCB as
Lenders' Agent to enter into the Intercreditor Agreement on behalf of the
Lenders.
C. Holdings and the Borrowers have requested that the Required Lenders
amend certain provisions of the Credit Agreement in connection with the
foregoing.
D. The Required Lenders are willing to grant such consent and approve such
amendments pursuant to the terms and subject to the conditions set forth herein.
E. Capitalized terms used and not otherwise defined herein shall have the
meanings assigned thereto in the Credit Agreement, and if not defined in the
Credit Agreement or if the context so requires, the meanings assigned thereto in
the Intercreditor Agreement.
SECTION 1. Consents. (a) The undersigned Lenders hereby consent to the
following:
(a) The entry by Holdings, the Originators and the Receivables Seller
into the Receivables Facility and the consummation of the transactions
contemplated thereby.
(b) The entry by Holdings, the Originators and the Receivables Seller
into the Replacement Facility and the consummation of the transactions
contemplated thereby.
SECTION 2. Amendments. (a) The definition of "Permitted Receivables
Financing" in Section 1.01 of the Credit Agreement is hereby deleted and
replaced in its entirety with the following:
"Permitted Receivables Financing" means the sale by the Parent
Borrower and certain Subsidiaries (other than Foreign Subsidiaries) of
accounts receivables (i)(a) to the Receivables Subsidiary pursuant to
the Receivables Sale Agreement and (b) the sale of such accounts
receivable (or participation therein) by the Receivables Subsidiary to
certain purchasers pursuant to the Receivables Transfer Agreement and
(ii) directly (or indirectly through a special purpose subsidiary) to
third parties pursuant to third-party financing agreements in
transactions constituting "true sales", provided that the aggregate
net investment of the purchasers under the Receivables Transfer
Agreement and such third-party financing agreements in such accounts
receivable so sold by the Parent Borrower and such Subsidiaries shall
not exceed in the aggregate $175,000,000 and, provided further that
any such receivables financing described in clause (ii) above shall be
satisfactory to the Administrative Agent and the administrative agent
under the Receivables Transfer Agreement.
(b) The definition of "Receivables Subsidiary" in Section 1.01 of the
Credit Agreement is hereby deleted and replaced in its entirety with the
following:
"Receivables Subsidiary" means MTSPC, Inc., a Delaware corporation, or
any special purpose subsidiary referred to in clause (ii) of the definition
of Permitted Receivables Facility.
SECTION 3. Authorization. The undersigned Lenders hereby authorize JPMCB as
Lenders' Agent to enter into the Intercreditor Agreement on behalf of the
Lenders.
SECTION 4. Representations and Warranties. Each of Holdings and the
Borrowers represents and warrants to the Administrative Agent and to each of the
Lenders that:
(a) This Consent has been duly authorized, executed and delivered by
it and constitutes a legal, valid and binding obligation of each Loan Party
party hereto, enforceable against such Loan Party in accordance with its
terms.
(b) After giving effect to this Consent, the representations and
warranties set forth in Article III of the Credit Agreement are true and
correct in all material respects on and as of the date hereof with the same
effect as if made on and as of the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date.
(c) After giving effect to this Consent, no Default or Event of
Default has occurred and is continuing.
SECTION 5. Consent Fee. In consideration of the agreements of the Required
Lenders contained in this Consent, the Parent Borrower agrees to pay to the
Administrative Agent, for the account of each Lender that delivers an executed
counterpart of this Consent prior to 10:00 AM, New York City time, on May 20,
2005, a consent fee (the "Consent Fee") equal to 25 basis points on the
aggregate amount of the Commitments and outstanding Term Loans of such Lender.
SECTION 6. Conditions to Effectiveness. This Consent shall become effective
as of May 16, 2005, when (a) the Administrative Agent shall have received (i)
counterparts of this Consent that, when taken together, bear the signatures of
Holdings, the Parent Borrower and the Required Lenders and (ii) the Consent Fee,
(b) the representations and warranties set forth in Section 4 hereof are true
and correct (as set forth on an officer's certificate delivered to the
Administrative Agent) and (c) all fees and expenses required to be paid or
reimbursed by the Borrowers pursuant hereto or to the Credit Agreement or
otherwise, including all invoiced fees and expenses of counsel to the
Administrative Agent, shall have been paid or reimbursed, as applicable.
SECTION 7. Credit Agreement. Except as specifically provided in this
Consent, the Credit Agreement shall continue in full force and effect in
accordance with the provisions thereof as in existence on the date hereof. This
Consent shall be a Loan Document for all purposes.
SECTION 8. Applicable Law. THIS CONSENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Counterparts. This Consent may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one agreement. Delivery of an executed
signature page to this Consent by facsimile transmission shall be effective as
delivery of a manually signed counterpart of this Consent.
SECTION 10. Expenses. The Parent Borrower agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Consent, including the fees, charges and disbursements of Cravath, Swaine &
▇▇▇▇▇ LLP, counsel for the Administrative Agent.
SECTION 11. Headings. The headings of this Consent are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Consent to be duly
executed by their respective authorized officers as of the day and year first
written above.
METALDYNE CORPORATION,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
& Chief Financial Officer
METALDYNE COMPANY LLC,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
JPMORGAN CHASE BANK, N.A.
(formerly known as JPMorgan
Chase Bank), Individually and
as Administrative Agent and
Collateral Agent,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director