AMENDMENT NO. 1 TO THE TERM
FACILITY CREDIT AND GUARANTY AGREEMENT
Dated as of November 21,
2008
AMENDMENT NO. 1 (this “ Amendment ”) TO THE
TERM FACILITY CREDIT AND GUARANTY AGREEMENT among Dana Holding
Corporation, a Delaware corporation (the “ Borrower
”), the guarantors listed on the signature pages hereto (the
“ Guarantors ”) and Citicorp USA Inc. (“
CUSA ”), as administrative agent (the “
Administrative Agent ”) for the Lenders (defined
below).
(1) The
Borrower, the Guarantors, the financial institutions and other
institutional lenders party thereto from time to time (the “
Lenders ”), the Administrative Agent and the other
agents party thereto have entered into a Term Facility Credit and
Guaranty Agreement dated as of January 31, 2008 (as further
amended, supplemented or otherwise modified through the date
hereof, the “ Credit Agreement ”). Capitalized
terms not otherwise defined in this Amendment have the same
meanings as specified in the Credit Agreement.
(2) The
Borrower has requested that the Lenders and the Administrative
Agent agree to amend certain provisions of the Credit Agreement as
described herein.
(3) The
Borrowers, the Lenders and the Administrative Agent have agreed to
amend the Credit Agreement as hereinafter set forth.
NOW,
THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are
hereby acknowledged), the parties hereto hereby agree as
follows:
SECTION
1. Amendments to Credit Agreement .
(a) Section 1.01
of the Credit Agreement is hereby amended by inserting the
following new terms in the correct alphabetical order:
“ “
Amendment No. 1 ” means Amendment No. 1 to
this Agreement dated as of November 21, 2008 by and among the
Borrower, the Guarantors, the Administrative Agent and the Required
Lenders party thereto.
“
Amendment No. 1 Effective Date ” has the meaning
specified in Amendment No. 1.
“
Amendment No. 1 Prepayment ” has the meaning
specified in Section 2.06(b)(vi).
“
Amendment No. 1 Specified Asset Sales ” means
each of the asset sale transactions described on Schedule 1 to
Amendment No. 1.
“ Excess
Foreign Subsidiary Debt ” has the meaning specified in
Section 5.02(b)(vii).
“ Payment
Condition ” means immediately after giving effect to any
Restricted Payment, the Total Leverage Ratio, as of the most
recently completed fiscal quarter, is less than or equal to
3.25:1.00.”
(b) The
definition of “Asset Sale” contained in
Section 1.01 of the Credit Agreement is hereby amended by
inserting therein, immediately after the phrase “clause
(ix) of Section 5.02(g)” contained therein, the
phrase “and clause (x) of
Section 5.02(g)”.
(c) The
definition of “Applicable Margin” contained in
Section 1.01 of the Credit Agreement is hereby amended and
restated in its entirety, for the period commencing with the
Amendment No. 1 Effective Date, to read as follows:
“ “
Applicable Margin ” means 4.25% per annum, in the case
of Eurodollar Rate Advances, and 3.25% per annum, in the case of
Base Rate Advances.”
(d) The
definition of “EBITDA” contained in Section 1.01
of the Credit Agreement is hereby amended and restated in its
entirety for the period commencing with the Amendment No. 1
Effective Date, to read as follows:
“
“EBITDA” means, for any period, without duplication
(a) the sum, determined on a Consolidated basis, of
(i) net income (or net loss), (ii) interest expense and
facility fees, unused commitment fees, letter of credit fees and
similar fees, (iii) income tax expense, (iv) depreciation
expense, (v) amortization expense, (vi) non recurring,
transactional or unusual losses deducted in calculating net income
less non recurring, transactional or unusual gains added in
calculating net income, (vii) in each case without
duplication, cash Restructuring Charges to the extent deducted in
computing net income for such period and settled or to be settled
in cash during such period in an aggregate amount not to exceed (A)
$100,000,000 in each of Fiscal Year 2008, Fiscal Year 2009 and
Fiscal Year 2010 and (B) $50,000,000 in the aggregate in any other
Fiscal Year; provided, that with respect to the period
commencing after Fiscal Year 2010, the aggregate amount does not
exceed $100,000,000, in each case of the Borrower and its
Subsidiaries, determined in accordance with GAAP for such period,
(viii) non-cash Restructuring Charges and related non-cash
losses or other non-cash charges resulting from the writedown in
the valuation of any assets, in each case of the Borrower and its
Subsidiaries, determined in accordance with GAAP for such period,
(ix) non-cash expenses associated with the issuance of equity
or rights to equity, or alternatively, non-cash grants of equity or
rights to equity, (x) amounts associated with stock options or
restricted stock expense, (xi) minority interest expense,
(xii) losses or expenses associated with the Agreement Value
of Hedge Agreements, (xiii) post-emergence costs associated
with the continued cost of the Reorganization Plan in an aggregate
amount not to exceed $20,000,000 in Fiscal Year 2008 and not to
exceed $5,000,000 in any other
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Fiscal Year,
(xiv) non-cash currency losses on intercompany loans or
advances, and (xv) losses of affiliates accounted for on an equity
basis; minus (b) (i) earnings of affiliates accounted for on
an equity basis, (ii) interest income, (iii) any income
or gain associated with the Agreement Value of Hedge Agreements,
and (iv) non-cash currency income or gains on intercompany
loans or advances. ”
(e) The
definitions of “Reinvestment Event”,
“Reinvestment Limitation Amount” and
“Reinvestment Notice” contained in Section 1.01 of
the Credit Agreement are each hereby amended and restated in their
entirety for the period commencing with the Amendment No. 1
Effective Date, to read as follows:
“ “
Reinvestment Event ” shall mean any Asset Sale
permitted under Section 5.02(g)(ix) or Recovery Event in respect of
which the Borrower has delivered a Reinvestment
Notice.”
“ “
Reinvestment Limitation Amount ” shall mean
(i) with respect to a Recovery Event, $50,000,000, or
(ii) with respect to an Asset Sale permitted under Section
5.02(g)(ix), (a) the Net Cash Proceeds received from any such
Asset Sale with respect to any asset in which the fair value of the
assets being sold are less than or equal to $5,000,000 or
(b) any Net Cash Proceeds in respect of the sale of the
Borrower’s headquarters located in Toledo,
Ohio.”
“ “
Reinvestment Notice ” shall mean a written notice
executed by a Responsible Officer of the Borrower stating that no
Default has occurred and is continuing or would result therefrom
and that the Borrower (directly or indirectly through a Subsidiary)
intends and expects to use all or a specified portion of the Net
Cash Proceeds of a Reinvestment Event to acquire or repair assets
(in the case of any Asset Sale pursuant to
Section 5.02(g)(ix)) or long-term assets (in the case of any
Recovery Event), in each case useful in its business, up to an
amount not to exceed the Reinvestment Limitation Amount for any
Fiscal Year; provided that no Reinvestment Notice shall be
permitted to be delivered in respect of any Net Cash Proceeds
constituting a Revolving Facility Prepayment Amount required to be
applied to the prepayment of advances under the Revolving Credit
Facility pursuant to the Revolving Facility Loan
Documents.”
(f) Section 2.06(b)(i)
of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
(g)
“(i) If at any time any Loan Party or any of its Subsidiaries
shall receive Net Cash Proceeds from any (A) Asset Sale or
(B) Recovery Event, unless and to the extent that a
Reinvestment Notice, as applicable, shall be delivered in respect
thereof, the Borrower shall, within five Business Days after the
date of receipt of such Net Cash Proceeds by such Loan Party or any
of its Subsidiaries, prepay the Term Advances in an amount equal to
(x) 100% of such Net Cash Proceeds less (y) solely
in the case of any Net Cash Proceeds in respect of Revolving
Facility Collateral, any Revolving Facility Prepayment Amount
required to be applied to the prepayment of advances under the
Revolving Credit Facility pursuant to the Revolving Facility Loan
Documents in connection with such Asset Sale or Recovery Event;
provided that the aggregate amount reinvested does not
exceed the applicable Reinvestment
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Limitation
Amount in respect of Asset Sales, as applicable or Recovery Events,
as the case may be; and provided , further , that,
notwithstanding the foregoing, on each Reinvestment Prepayment
Date, an amount equal to the Reinvestment Prepayment Amount with
respect to the relevant Reinvestment Event shall be applied toward
the prepayment of the Term Advances.”
(h) Section 2.06(b)
of the Credit Agreement is hereby amended by inserting therein,
after the existing clause (vii) contained therein, a new
clause (viii):
“(viii) All
prepayments under this Section 2.06(b) shall be made together
with accrued interest to the date of such prepayment on the
principal amount prepaid, and, if any such prepayment is made on a
day other than on the last day of the Interest Period applicable
thereto, such prepayment shall be accompanied by the payment of the
amounts required by Section 10.04(c) if the applicable Lender
has provided the Borrower with adequate notice of the amount of the
same. Each prepayment of the outstanding Term Advances made under
this Section 2.06(b) shall be applied pro rata to the
remaining principal repayment installments thereof. Notwithstanding
the forgoing, any prepayment of Advances pursuant to this Section
2.06(b), other than pursuant to Section 2.06(b)(iv) or
Section 2.06(b)(vi), that is made on or prior to the second
anniversary of the Closing Date shall be accompanied by a premium
such that the aggregate amount of such prepayment shall equal the
applicable Call Premium.”
(i) Section 2.06(b)(ii)
of the Credit Agreement is hereby amended by deleting the
parenthetical contained in such Section 2.06(b)(ii) and
substituting in lieu thereof the following
parenthetical:
“(other than
any Debt permitted under Section 5.02(b), except with respect
to any Excess Foreign Subsidiary Debt)”
(j) Section 2.06(b)(vi)
of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
“(vi) On the
Amendment No. 1 Effective Date, the Borrower shall prepay the
outstanding Term Advances in an aggregate principal amount of
$150,000,000 (the “ Amendment No. 1 Prepayment
”).”
(k) Section 5.01(g)
of the Credit Agreement is hereby amended by deleting the
“[Reserved]” appearing therein and substituting in lieu
thereof the following new clause (g):
“(g) Within
60 days of the Amendment No. 1 Effective Date (with
extensions permitted in the reasonable discretion of the
Administrative Agent), deliver to the Administrative Agent such
amendments as the Administrative Agent may request with respect to
any Blocked Account Agreement (as defined in the Revolving Facility
Credit Agreement) in effect on the Amendment No. 1 Effective
Date, as is necessary to satisfy the provisions of
Section 2.17 of the Revolving Facility Credit
Agreement.”
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(l) Section 5.02(b)
of the Credit Agreement is hereby amended by deleting the existing
clause (vii) contained therein and substituting in lieu
thereof the following new clause (vii):
“(vii) Debt
of Foreign Subsidiaries owing to third parties; provided,
that the Net Cash Proceeds of any Debt incurred by a Foreign
Subsidiary in excess of $400,000,000 in the aggregate of all Debt
incurred by Foreign Subsidiaries (any such excess Debt being,
“ Excess Foreign Subsidiary Debt ”) shall be
applied as a prepayment of outstanding Advances in accordance with
Section 2.06(b)(ii).”
(m) Section 5.02(d)(i)
of the Credit Agreement is hereby amended by inserting therein, at
the beginning of such Section 5.02(d)(i), the
following:
“Subject
to the satisfaction of the Payment Condition and”
(n) Section 5.02(g)
of the Credit Agreement is hereby amended by (i) deleting the
“and” appearing immediately before clause
(ix) contained therein, (ii) deleting the period
appearing at the end of such Section 5.02(g) and substituting
in lieu thereof a semi-colon and (iii) inserting at the end
thereof the following new clause (x):
“and
(x) for the period commencing with the Amendment No. 1
Effective Date, the Amendment No. 1 Specified Asset Sales;
provided , that in each case, (A) such Amendment No. 1
Specified Asset Sale shall be for fair market value as determined
by the Borrower in good faith, (B) such Loan Party shall
receive not less than 75% of the consideration in cash and
(C) no Default or Event of Default exists immediately before
or after giving effect to such Amendment No. 1 Specified Asset
Sale.”
(o) Section 5.04
(a) is hereby amended and restated in its entirety, for the
period commencing with the Amendment No. 1 Effective Date, to
read as follows:
“ Total
Leverage Ratio . The Borrower shall not permit the Total
Leverage Ratio on the last day of any Fiscal Quarter during any
period set forth below to be greater than the ratio set forth
opposite such period below:
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Test Period Ending
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Total Leverage
Ratio
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December 31, 2008
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4.25:1.00
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March&n
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