WAIVER
and AMENDMENT, dated as of June 29, 2009, (this “
Waiver ”) to the Credit Agreement dated as of
January 9, 2004, as amended and restated as of
November 7, 2008 (as amended, supplemented or otherwise
modified through the date hereof, the “ Credit
Agreement ”), among AMERICAN AXLE & MANUFACTURING,
INC., a Delaware corporation (the “ Borrower ”),
AMERICAN AXLE & MANUFACTURING HOLDINGS, INC., a Delaware
corporation (the “ Parent ”), the Lenders from
time to time party thereto and JPMorgan Chase Bank, N.A., as
Administrative Agent (the “ Administrative Agent
”). Capitalized terms used but not otherwise defined herein
shall have the meanings assigned to them in the Credit
Agreement.
WHEREAS;
pursuant to the Credit Agreement, the Lenders have extended credit
to the Borrower;
WHEREAS;
the Parent and the Borrower have requested certain waivers under
the Credit Agreement; and
WHEREAS;
the undersigned Lenders are willing to agree to such waivers on the
terms and subject to the conditions set forth herein.
NOW,
THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION
1. Limited Waiver .
(a) Subject
to the terms and conditions of this Waiver, the undersigned Lenders
hereby waive, during the Waiver Period (as defined below)
(i) any Default resulting from the Borrower’s
non-compliance during the Waiver Period with the requirements of
Sections 6.09 and 6.10 of the Credit Agreement (the “
Waived Defaults ”) and (ii) any prepayment that
would be due pursuant to Section 2.10(c) of the Credit
Agreement during the Waiver Period.
(b)
(i) “ Waiver Period ” means the period
commencing on the Waiver Effective Date (as defined below) and
terminating upon the earliest to occur of (i) 5:00 p.m., New
York City time, on July 30, 2009, (ii) the failure of the
Parent and the Borrower to maintain a Liquidity Amount in excess of
$100,000,000 for a period of two consecutive Business Days and
delivery to the Borrower by the Administrative Agent of a notice
stating that the Waiver Period is being terminated or (iii) any
Event of Default (other than a Waived Default) and delivery to the
Borrower by the Administrative Agent of a notice (which the
Administrative Agent shall deliver at the request of the Required
Lenders), while such Event of Default is continuing, stating that
the Waiver Period is being terminated (the date on which the Waiver
Period is terminated pursuant to any of the foregoing clauses, the
“ Waiver Termination Date ”).
(ii)
“ Liquidity Amount ” means, as of any day, the
sum of (a) the excess, if any, of the Commitments over the
Revolving Credit Exposures as of such day plus (b) the
aggregate amount of unrestricted cash and cash equivalents held as
of such day by the Loan
Parties and the
Subsidiaries organized in Brazil, Luxembourg, Mexico and the United
Kingdom. For purposes of determining the Liquidity Amount, cash and
cash equivalents shall be deemed to be restricted to the extent
(A) subject to a Lien (other than a Lien securing the Secured
Obligations), (B) the Parent or any of the Subsidiaries is
subject to a legally binding restriction on the use or application
thereof (or a legally binding obligation to apply it to a
particular purpose) or (C) consisting of short term
investments held in the Reserve International Liquidity Fund or the
Reserve Yield Plus Fund.
(c) If
any Waived Default is continuing on the Waiver Termination Date,
such Waived Default shall constitute an Event of Default on the
Waiver Termination Date. If any prepayment would be due during the
Waiver Period pursuant to Section 2.10(c) of the Credit
Agreement, then such prepayment shall be made (i) on the
Waiver Termination Date if written notice of the Waiver Termination
Date is delivered to the Borrower by the Administrative Agent at or
before 12:00 noon, New York City time, on the Waiver Termination
Date or (ii) on the Business Day immediately following the
Waiver Termination Date if such notice is delivered after 12:00
noon, New York City time, on the Waiver Termination
Date.
SECTION
2. Certain Amendments and Agreements.
(a) The
Parent and the Borrower hereby agree that during the Waiver
Period:
(i) The
Borrower shall not request or borrow any Swingline
Loans.
(ii) The
Borrower shall provide to the Administrative Agent, prior to 3:00
p.m., New York City time, on each Business Day, a calculation of
the Liquidity Amount as of the close of business on the immediately
preceding Business Day, which calculation shall set forth, for any
cash or cash equivalents included in the Liquidity Amount, the
jurisdiction in which such cash or cash equivalents are
held.
(iii) The
Parent and the Borrower will not, and will not permit any other
Subsidiary to, create, incur or assume any Indebtedness, including
pursuant to any Guarantee of Indebtedness of the Parent or another
Subsidiary, (A) under clause (v) of Section 6.01(a)
of the Credit Agreement and (B) under clause (vi) or
(vii) of Section 6.01(a) of the Credit Agreement in
excess of $10,000,000.
(iv) The
Parent and the Borrower will not, and will not permit any of the
other Subsidiaries to, purchase or acquire (including pursuant to
any merger with any Person that was not a wholly owned Subsidiary
prior to such merger) any Equity Interests, evidences of
indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to
exist any loans or advances to, Guarantee any obligations of, or
make or permit to exist any investment or any other interest in,
any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other
Person constituting a business unit pursuant to any of clauses (f),
(g), (i) or (m) of Section 6.04 of the Credit
Agreement, except (A) those previously made and outstanding on
the date hereof and (B) investments made pursuant to
Section 6.04(m) in an amount not to exceed $20,000,000 in the
aggregate. In addition, for purposes of determining compliance with
Section 6.04 of the Credit Agreement during the Waiver Period,
the $200,000,000 limit in clause (ii) of the proviso
to
clause
(c) thereof shall not apply, and instead, the investments,
loans, advances and Guarantees referred to in such clause shall be
limited to those outstanding on the date hereof.
(v) The
Parent and the Borrower will not, nor will they permit any
Subsidiary to, declare or make, or agree to pay or make, directly
or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so under clause (vii) of
Section 6.07 of the Credit Agreement.
(vi) For
purposes of Section 6.07(b) of the Credit Agreement, the Term
Loans shall be deemed to constitute “Restricted Debt”.
In addition, refinancings shall not be permitted under clause (i)
of Section 6.07(b).
(vii) For
purposes of determining whether an Event of Default has occurred
pursuant to clause (f) of Article VII of the Credit
Agreement, the dollar amount set forth in the definition of
“Material Indebtedness” shall be deemed to be
$5,000,000; provided that for purposes of such determination
Indebtedness of certain Foreign Subsidiaries owing to third party
creditors previously disclosed to the Administrative Agent shall be
deemed not to be Material Indebtedness.
(viii) Failure
to comply with any of the requirements of this Section 2(b) shall
constitute an Event of Default for all purposes of the Loan
Documents.
(b) Section 6.07(b)(iii)
of the Credit Agreement is hereby amended by replacing
“(v)” therein with “(vii)”.
SECTION
3. Representations and Warranties . To induce the other
parties hereto to enter into this Waiver, each of the Parent and
the Borrower hereby represents and warrants to each Lender and the
Administrative Agent that, after giving effect to this
Waiver:
(a) the
representations and warranties of each Loan Party set forth in the
Loan Documents (except for the representation and warranty set
forth in Section 3.04(b) of the Credit Agreement) are true and
correct in all material respects on and as of the Waiver Effective
Date, except to the extent such representations and warranties
expressly relate to an earlier date (in which case such
representations and warranties are true and correct in all material
respects with respect to such earlier date); and
(b) as
of the Waiver Effective Date, no Default or Event of Default (other
than the Waived Defaults) has occurred and is
continuing.
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