EXHIBIT 10(a)
AMENDMENT NO. 2 TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
This AMENDMENT NO. 2 TO AMENDED AND RESTATED 5-YEAR REVOLVING
CREDIT AGREEMENT (the "AMENDMENT") dated as of February 1, 2002 is among
ArvinMeritor, Inc., an Indiana corporation (the "COMPANY"), Meritor Automotive
Canada, Inc., a company organized under the laws of Canada, Arvin Finance
Ireland, a company organized under the laws of Ireland, Meritor Heavy Vehicle
Systems Limited, a company organized under the laws of the United Kingdom
(collectively with the Company referred to as the "BORROWERS") and the "Lenders"
and the "Agents" signatory hereto (each as defined in the "Credit Agreement"
referred to below). Defined terms used herein and not otherwise defined herein
shall have the meanings given to them in the Credit Agreement.
WHEREAS, the Borrowers, the Lenders and the Agents are parties
to that certain Amended and Restated 5-Year Revolving Credit Agreement dated as
of June 27, 2001 (as amended by Amendment No. 1 thereto dated as of September
30, 2001, the "CREDIT AGREEMENT") among the Borrowers, the other Foreign
Subsidiary Borrowers from time to time party thereto, the Lenders from time to
time party thereto, Bank One, NA, in its capacity as administrative agent for
itself and the other "Lenders" under the "Credit Agreement" (each as hereinafter
defined) (the "ADMINISTRATIVE AGENT"), JP Morgan Chase Bank (successor to The
Chase Manhattan Bank), in its capacity as syndication agent for itself and the
other Lenders under the Credit Agreement (the "SYNDICATION AGENT") and Citicorp
USA, Inc. and Bank of America, N.A. (collectively, the "DOCUMENTATION AGENTS";
the Administrative Agent, the Syndication Agent and the Documentation Agents
being referred to collectively as the "AGENTS");
WHEREAS, the Borrowers have requested that the Agents and the
Lenders amend certain provisions of the Credit Agreement; and
WHEREAS, the Borrowers, the Agents and the Lenders have agreed
to enter into this Amendment on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises set forth
above, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrowers, the Lender and the
Agents agree as follows:
1. Amendments. Effective as of the date first above written
and subject to the satisfaction of the conditions precedent set forth in Section
2 below, the Credit Agreement shall be and hereby is amended as follows:
1.1. The definition of "Total Debt" set forth in Section 1.1
of the Credit Agreement is hereby deleted in its entirety and the
following new definition shall be substituted therefor:
"Total Debt" means, as of the end of any fiscal quarter of the
Company, (a) all Indebtedness of the Company and its Subsidiaries as at
such date, but excluding Indebtedness consisting of the
Company-obligated mandatorily redeemable preferred capital securities,
determined on a consolidated basis, minus (b) the amount identified on
the Company's consolidated balance sheet as "cash and cash equivalents"
as of the last day of such fiscal quarter, but solely to the extent
that:
(i) such cash and cash equivalents exceed $50,000,000;
and
(ii) such cash and cash equivalents are not subject to a
Lien (including, without limitation, any Lien
permitted hereunder), setoff (other than ordinary
course setoff rights of a depository bank arising
under a bank depository agreement for customary fees,
charges and other account-related expenses due to
such depository bank thereunder), counterclaim,
recoupment, defense or other right in favor of any
Person (other than the Administrative Agent, for the
benefit of itself and the other Lenders).
2. Conditions Precedent. This Amendment shall become effective
as of the date first above written, if, and only if the Administrative Agent has
received duly executed originals of this Amendment from the Borrowers and the
Required Lenders.
3. Representations and Warranties of the Borrowers. The
Borrowers hereby represent and warrant as follows:
(a) The Borrowers have the requisite corporate or other
organizational power and authority to execute and deliver this Amendment and the
officers of the Borrowers executing this Amendment have been duly authorized to
execute and deliver the same and bind the Borrowers with respect to the
provisions hereof.
(b) This Amendment and the Credit Agreement, as amended
hereby, constitute legal, valid and binding obligations of the Borrowers and are
enforceable against the Borrowers in accordance with their terms (except as
enforceability may be limited by bankruptcy, insolvency, or similar laws
affecting the enforcement of creditors' rights generally).
(c) Upon the effectiveness of this Amendment, the Borrowers
hereby reaffirm all representations and warranties made in the Credit Agreement,
and to the extent the same are not amended hereby, agree that all such
representations and warranties shall be deemed to have been remade as of the
date of delivery of this Amendment, unless and to the extent that any such
representation and warranty is stated to relate solely to an earlier date, in
which case such representation and warranty shall be true and correct as of such
earlier date.
(d) No Default or Unmatured Default has occurred and is
continuing under the Credit Agreement that has not been waived.
4. Reference to and Effect on the Credit Agreement.
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(a) Upon the effectiveness of Section 1 hereof, on and after
the date hereof, each reference in the Credit Agreement to "this Credit
Agreement," "hereunder," "hereof," "herein" or words of like import shall mean
and be a reference to the Credit Agreement, as amended hereby.
(b) Except as specifically amended or waived above, the Credit
Agreement, as amended hereby, and all other documents, instruments and
agreements executed and/or delivered in connection therewith, shall remain in
full force and effect, and are hereby ratified and confirmed.
(c) Except as expressly provided herein, the execution,
delivery and effectiveness of this Amendment shall not operate as a waiver of
any right, power or remedy of the Agents or the Lenders, nor constitute a waiver
of any provision of the Credit Agreement or any other documents, instruments and
agreements executed and/or delivered in connection therewith.
5. Governing Law. This Amendment shall be governed by and
construed in accordance with the internal laws (as opposed to the conflict of
law provisions) of the State of Illinois.
6. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
7. Counterparts. This Amendment may be executed by one or more
of the parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
3
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered on the date first above written.
ARVINMERITOR, INC., as a Borrower
By: /s/ Frank A. Voltolina
------------------------------------
Name: Frank A. Voltolina
Title: Vice President and Treasurer
MERITOR AUTOMOTIVE CANADA, INC., as a
Borrower
By: /s/ Frank A. Voltolina
-----------------------------------
Name: Frank A. Voltolina
Title: Treasurer
ARVIN FINANCE IRELAND, as a Borrower
By: /s/ Frank A. Voltolina
-----------------------------------
Name: Frank A. Voltolina
Title: Director
MERITOR HEAVY VEHICLE SYSTEMS
LIMITED, as a Borrower
By:___________________________________
Name: Allan H.S. Johnson
Title: Director and Secretary
SIGNATURE PAGE TO AMENDMENT NO. 2 TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered on the date first above written.
ARVINMERITOR, INC., as a Borrower
By:_________________________________
Name:
Title:
MERITOR AUTOMOTIVE CANADA, INC., as a
Borrower
By:_________________________________
Name:
Title:
ARVIN FINANCE IRELAND, as a Borrower
By:_________________________________
Name:
Title:
MERITOR HEAVY VEHICLE SYSTEMS
LIMITED, as a Borrower
By: /s/ Allan H.S. Johnson
---------------------------------
Name: Allan H.S. Johnson
Title: Director and Secretary
SIGNATURE PAGE TO AMENDMENT NO. 2 TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
LENDERS:
BANK ONE, NA (Main Office Chicago), as
Administrative Agent, an Issuer, the Swing Line
Bank and a Lender
By: /s/ William J. Maxbauer
-----------------------------------
Name: William J. Maxbauer
Title: Director
JP MORGAN CHASE BANK (successor to THE
CHASE MANHATTAN BANK}, as Syndication
Agent and a Lender
By:____________________________________
Name:
Title:
BANK OF AMERICA, N.A., as Documentation Agent
and a Lender
By:____________________________________
Name:
Title:
CITICORP USA, INC., as Documentation Agent
and a Lender
By:____________________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Lender
By:____________________________________
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 2 TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
LENDERS:
BANK ONE, NA (Main Office Chicago), as
Administrative Agent, an Issuer, the Swing Line
Bank and a Lender
By:____________________________________
Name:
Title:
JP MORGAN CHASE BANK (successor to THE
CHASE MANHATTAN BANK), as Syndication
Agent and a Lender
By: /s/ Karen W. Sharf
------------------------------------
Name: Karen W. Sharf
Title: Vice President
BANK OF AMERICA, N.A., as Documentation
Agent and a Lender
By:____________________________________
Name:
Title:
CITICORP USA, INC., as Documentation Agent
and a Lender
By:____________________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Lender
By:____________________________________
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 2 TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
LENDERS:
BANK ONE, NA (Main Office Chicago), as
Administrative Agent, an Issuer, the Swing Line
Bank and a Lender
By:____________________________________
Name:
Title:
JP MORGAN CHASE BANK (successor to THE
CHASE MANHATTAN BANK), as Syndication
Agent and a Lender
By:____________________________________
Name:
Title:
BANK OF AMERICA, N.A., as Documentation
Agent and a Lender
By: /s/ Chas McDonnell
------------------------------------
Name: Chas McDonnell
Title: Managing Director
CITICORP USA, INC., as Documentation Agent
and a Lender
By:____________________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Lender
By:____________________________________
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 2 TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
C0MERICA BANK, as a Lender
By:____________________________________
Name:
Title:
DEUTSCHE BANK AG
NEW YORK BRANCH AND/OR CAYMAN
ISLAND BRANCH, as a Lender
By: /s/ Oliver Schwarz
------------------------------------
Name: Oliver Schwarz
Title: Vice President
By: /s/ Stephen G. Peezen
------------------------------------
Name: Stephen G. Peezen
Title: Director
KEYBANK NATIONAL ASSOCIATION, as a
Lender
By:____________________________________
Name:
Title:
UBS AG, STAMFORD BRANCH, as a Lender
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 2 TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
COMERICA BANK, as a Lender
By:____________________________________
Name:
Title:
DEUTSCHE BANK AG
NEW YORK BRANCH AND/OR CAYMAN
ISLAND BRANCH, as a Lender
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Title:
KEYBANK NATIONAL ASSOCIATION, as a
Lender
By:____________________________________
Name:
Title:
UBS AG, STAMFORD BRANCH, as a Lender
By: /s/ Wilfred V. Saint
--------------------------------
Name: Wilfred V. Saint
Title: Associate Director
Banking Products
Services, US
By:____________________________________
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 2 TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
HSBC BANK PLC, as a Lender
By: /s/ G. R. Thomas
---------------------------------
Name: G. R. Thomas
Title: Global Relationship Manager
ABN AMRO BANK N.V., as a Lender
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
FIRST UNION NATIONAL BANK, as a Lender
By:_________________________________
Name:
Title:
FLEET NATIONAL BANK, as a Lender
By:_________________________________
Name:
Title:
SUNTRUST BANK, as a Lender
By:_________________________________
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 2 TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
HSBC BANK PLC, as a Lender
By:_________________________________
Name:
Title:
ABN AMRO BANK N.V., as a Lender
By: /s/ Laurie D. Flom
---------------------------------
Name: Laurie D. Flom
Title: Senior Vice President
By: /s/ Douglas R. Elliott
---------------------------------
Name: Douglas R. Elliott
Title: Group Vice President
FIRST UNION NATIONAL BANK, as a Lender
By:_________________________________
Name:
Title:
FLEET NATIONAL BANK, as a Lender
By:_________________________________
Name:
Title:
SUNTRUST BANK, as a Lender
By:_________________________________
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 2 TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
HSBC BANK PLC, as a Lender
By:_________________________________
Name:
Title:
ABN AMRO BANK N.V., as a Lender
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
FIRST UNION NATIONAL BANK, as a Lender
By:_________________________________
Name:
Title:
FLEET NATIONAL BANK, as a Lender
By:_________________________________
Name:
Title:
SUNTRUST BANK, as a Lender
By: /s/ William C. Humphries
---------------------------------
Name: William C. Humphries
Title: Director
SIGNATURE PAGE TO AMENDMENT NO. 2 TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
TORONTO DOMINION (TEXAS), INC., as a
Lender
By: /s/ Jill Hall
------------------------------
Name: Jill Hall
Title: Vice President
MELLON BANK, N.A., as a Lender
By:_________________________________
Name:
Title:
THE BANK OF NEW YORK, as a Lender
By:_________________________________
Name:
Title:
BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN ISLANDS
BRANCH, as a Lender
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH, as
a Lender
By:_________________________________
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 2 TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
TORONTO DOMINION (TEXAS), INC., as a
Lender
By:_________________________________
Name:
Title:
MELLON BANK, N.A., as a Lender
By:_________________________________
Name:
Title:
THE BANK OF NEW YORK, as a Lender
By: /s/ Joshua Feldman
--------------------------------
Name: Joshua Feldman
Title: Vice President
BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN ISLANDS
BRANCH, as a Lender
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH, as
a Lender
By:_________________________________
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 2 TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
TORONTO DOMINION (TEXAS), INC., as a
Lender
By:_________________________________
Name:
Title:
MELLON BANK, N.A., as a Lender
By:_________________________________
Name:
Title:
THE BANK OF NEW YORK, as a Lender
By:_________________________________
Name:
Title:
BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN ISLANDS
BRANCH, as a Lender
By: /s/ Hereward Drummond
---------------------------------
Name: Hereward Drummond
Title: Senior Vice President
By: /s/ James H. Bolye
--------------------------------
Name: James H. Bolye
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH, as
a Lender
By:_________________________________
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 2 TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
TORONTO DOMINION (TEXAS), INC., as a
Lender
By:_________________________________
Name:
Title:
MELLON BANK, N.A., as a Lender
By:_________________________________
Name:
Title:
THE BANK OF NEW YORK, as a Lender
By:_________________________________
Name:
Title:
BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN ISLANDS
BRANCH, as a Lender
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH, as
a Lender
By: /s/ Guido Van Hauwermeiren
---------------------------------
Name: GUIDO VAN HAUWERMEIREN
Title: AUTHORIZED SIGNATURE
SIGNATURE PAGE TO AMENDMENT NO. 2 TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT
FIRSTAR BANK, NA, as a Lender
By:_______________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, CHICAGO BRANCH, as a Lender
By: /s/ Walter R. Wolff
-------------------------------
Name: Walter R. Wolff
Title: Joint General Manager and Group Head
LLOYDS TSB BANK plc, as a Lender
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
NATIONAL CITY BANK OF INDIANA, as a
Lender
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 2 TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT
AGREEMENT
FIRSTAR BANK, NA, as a Lender
By:_______________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, CHICAGO BRANCH, as a Lender
By:_______________________________
Name:
Title:
LLOYDS TSB BANK plc, as a Lender
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
NATIONAL CITY BANK OF INDIANA, as a
Lender
By: /s/ David McNeely
-------------------------------
Name: David McNeely
Title: Corporate Banking Officer
By:_______________________________
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 2 TO
AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT
AGREEMENT
THE NORTHERN TRUST COMPANY, as a
Lender
By:_______________________________
Name:
Title:
UNICREDITO ITALIANO, as a Lender
By:_______________________________
Name:
Title:
BANCA NAZIONALE DEL LAVORO, S.p.A.,
New York Branch, as a Lender
By: /s/ Juan Cortes
-------------------------------
Name: Juan Cortes
Title: Vice President
By: /s/ Leonardo Valentini
-------------------------------
Name: Leonardo Valentini
Title: First Vice President
SIGNATURE PAGE TO AMENDMENT NO. 2 TO
AMENDED AND RESTATED 5-YEAR
REVOLVING CREDIT AGREEMENT
INTESABCI - NEW YORK BRANCH, as a Lender
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
NORDEA BANK FINLAND PLC (formerly
MERITA BANK PLC), as a Lender
By: /s/ Charles J. Lansdown
-------------------------------
Name: Charles J. Lansdown
Title: Senior Vice President
By: /s/ Ulf Forsstrom
-------------------------------
Name: Ulf Forsstrom
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 2 TO
AMENDED AND RESTATED 5-YEAR
REVOLVING CREDIT AGREEMENT