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EXHIBIT 10.1
SECOND AMENDMENT
SECOND AMENDMENT, dated as of June 29, 1994 (this "Amendment"),
to the Amended and Restated Credit Agreement, dated as of October 25, 1993 (as
amended, supplemented or otherwise modified, the "Credit Agreement"), among
Lear Holdings Corporation, a Delaware corporation, Lear Seating Corporation, a
Delaware corporation (the "Borrower"), the several financial institutions
parties thereto (the "Banks"), Chemical Bank, as administrative agent for the
Banks (in such capacity, the "Agent"), and Bankers Trust Company, The Bank of
Nova Scotia, Citicorp USA, Inc. and Lehman Commercial Paper Inc., as Managing
Agents.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Banks have agreed
to make, and have made, extensions of credit to the Borrower;
WHEREAS, the Borrower desires to secure industrial revenue bond
financings and to have Letters of Credit issued under the Credit Agreement to
provide credit support for such financings; and
WHEREAS, the Borrower has requested, and upon this Amendment
becoming effective, the Banks have agreed, that certain provisions of the
Credit Agreement be amended in the manner provided for in this Amendment;
NOW, THEREFORE, in consideration of the premises and mutual
agreements contained herein, and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Defined Terms. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement.
2. Amendments to Credit Agreement. (a) Subsection 1.1 of
the Credit Agreement is hereby amended by (i) deleting the term "Issuing Bank"
in its entirety and (ii) adding the following new defined terms in correct
alphabetical order:
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"'Industrial Revenue Bonds': industrial revenue bonds
issued for the benefit of the Borrower or its Subsidiaries and in
respect of which the Borrower or its Subsidiaries will be the
source of repayment, provided that such financings, (including,
without limitation, the indenture related thereto) shall be in
form and substance reasonably satisfactory to the Issuing Bank
that issues a Letter of Credit backing such Industrial Revenue
Bonds.
`Issuing Bank': Chemical, in its capacity as issuer of
the Letters of Credit or, if Chemical is not the Agent hereunder,
such other Bank, which the Borrower and the Required Banks shall
have approved, in its capacity as issuer of the Letters of
Credit; provided that any Bank other than Chemical which agrees
to become an Issuing Bank, and which the Borrower and the
Required Banks shall have approved, may become an Issuing Bank
for Standby Letters of Credit to be used for the purposes
described in subsection 3.9(b)."
(b) Section 3 of the Credit Agreement is hereby amended by
deleting such Section in its entirety and inserting in lieu thereof Section 3
from Schedule I attached hereto.
(c) Subsection 8.8 of the Credit Agreement is hereby amended
by deleting the table therein in its entirety and inserting in lieu thereof the
following table:
"Fiscal Year Amount
----------- ------
1994 $100,000,000
1995 $ 60,000,000
1996 $ 40,000,000
1997 $ 35,000,000
1998 - thereafter $ 35,000,000;"
3. Conditions to Effectiveness. This Amendment shall become
effective on the date (the "Amendment Effective Date") on which the Borrower,
the Agent and the Required Banks shall have executed and delivered to the Agent
this Amendment.
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4. Representations and Warranties. The representations and
warranties made by the Borrower in the Loan Documents are true and correct in
all material respects on and as of the Amendment Effective Date, before and
after giving effect to the effectiveness of this Amendment, as if made on and
as of the Amendment Effective Date, except to the extent such representations
and warranties expressly relate to an earlier date.
5. Payment of Expenses. The Borrower agrees to pay or
reimburse the Agent for all of its out-of-pocket costs and reasonable expenses
incurred in connection with this Amendment and any other documents prepared in
connection herewith and the transactions contemplated hereby, including,
without limitation, the reasonable fees and disbursements of counsel to the
Agent.
6. No Other Amendments; Confirmation. Except as expressly
amended, modified and supplemented hereby, the provisions of the Credit
Agreement and the Notes are and shall remain in full force and effect.
7. Governing Law; Counterparts. (a) This Amendment and the
rights and obligations of the parties hereto shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New
York.
(b) This Amendment may be executed by one or more of the
parties to this Amendment on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Amendment signed by all the parties
shall be lodged with the Borrower and the Agent. This Amendment may be
delivered by facsimile transmission of the relevant signature pages hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
LEAR SEATING CORPORATION
By:
Title:
CHEMICAL BANK, as Agent and as a
Bank
By:
Title:
BANKERS TRUST COMPANY, as a
Managing Agent and as a Bank
By:
Title:
THE BANK OF NOVA SCOTIA, as a
Managing Agent and as a Bank
By:
Title:
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CITICORP USA, INC., as a
Managing Agent and as a Bank
By:
Title:
LEHMAN COMMERCIAL PAPER INC., as
a Managing Agent and as a Bank
By:
Title:
THE FIRST NATIONAL BANK OF
BOSTON
By:
Title:
THE BANK OF NEW YORK
By:
Title:
THE MITSUBISHI TRUST &
BANKING CORPORATION
By:
Title:
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THE NIPPON CREDIT BANK, LTD.
By:
Title:
SHAWMUT BANK CONNECTICUT, N.A.
By:
Title:
ABN AMRO BANK N.V.
By:
Title:
By:
Title:
CIBC INC.
By:
Title:
COMERICA BANK
By:
Title:
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CAISSE NATIONALE DE CREDIT
AGRICOLE
By:
Title:
CREDIT LYONNAIS CHICAGO BRANCH
By:
Title:
CREDIT LYONNAIS CAYMAN
ISLAND BRANCH
By:
Title:
THE FUJI BANK, LIMITED
By:
Title:
NATIONAL BANK OF CANADA
By:
Title:
By:
Title:
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NBD BANK, N.A.
By:
Title:
BANQUE PARIBAS
By:
Title:
By:
Title:
SOCIETE GENERALE
By:
Title:
CREDITANSTALT-BANKVEREIN
By:
Title:
By:
Title:
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GIRO CREDIT BANK - NEW YORK
BRANCH
By:
Title:
BANK ONE, MILWAUKEE, NA
By:
Title:
THE INDUSTRIAL BANK OF JAPAN, LTD.
By:
Title:
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ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned corporations as guarantors under the
Amended and Restated Subsidiary and Affiliate Guarantee, dated as of October
25, 1993, made by LS Acquisition Corp. No. 14, Lear Seating Holdings Corp. No.
50, Progress Pattern Corp., Lear Plastics Corp., LS Acquisition Corporation No.
24 and Fair Haven Industries, Inc. in favor of the Agent hereby (a) consents to
the transactions contemplated by this Amendment and (b) acknowledges and agrees
that the guarantees contained in such Amended and Restated Subsidiary and
Affiliate Guarantee (and all collateral security therefor) are, and shall
remain, in full force and effect after giving effect to this Amendment and all
prior modifications to the Credit Agreement.
LS ACQUISITION CORP. NO. 14
By:
Title:
LEAR SEATING HOLDINGS CORP.
NO. 50
By:
Title:
PROGRESS PATTERN CORP.
By:
Title:
LEAR PLASTICS CORP.
By:
Title:
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LS ACQUISITION CORPORATION
NO. 24
By:
Title:
FAIR HAVEN INDUSTRIES, INC.
By:
Title:
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SCHEDULE I
SECTION 3. LETTERS OF CREDIT
3.1 Letters of Credit. (a) Subject to the terms and conditions of
this Agreement, Chemical (or such other Bank which succeeds Chemical as Agent),
as Issuing Bank, agrees, and any other Issuing Bank may, as agreed between the
Borrower and such Issuing Bank, agree, on behalf of the Banks, and in reliance
on the agreement of the Banks set forth in subsection 3.3, to issue for the
account of the Borrower (or in connection with any Foreign Letter of Credit,
for the joint and several accounts of the Borrower and such applicable Foreign
Subsidiary) letters of credit in an aggregate face amount not to exceed
$100,000,000 at any time outstanding, as follows:
(i) standby letters of credit (collectively, the "Standby Letters of
Credit") in the form of either (A) in the case of standby letters of
credit to be used for the purposes described in subsection 3.9(a) or (c),
the Issuing Bank's standard standby letter of credit or (B) in the case of
standby letters of credit to be used for the purposes described in
subsection 3.9(b), a letter of credit reasonably satisfactory to the
Issuing Bank, and in either case, in favor of such beneficiaries as the
Borrower shall specify from time to time (which shall be reasonably
satisfactory to the Issuing Bank); provided that the face value of all
Foreign Letters of Credit with beneficiaries which are not organized under
the laws of Canada or Mexico shall not exceed, in the aggregate
$35,000,000; and
(ii) commercial letters of credit in the form of the Issuing Bank's
standard commercial letters of credit ("Commercial Letters of Credit") in
favor of sellers of goods or services to the Borrower or its Subsidiaries
(the Standby Letters of Credit and Commercial Letters of Credit being
referred to collectively as the "Letters of Credit");
provided that on the date of the issuance of any Letter of Credit, and after
giving effect to such issuance, the Extensions of Credit shall not exceed the
Commitments at such time. Each Standby Letter of Credit shall (i) have an
expiry date no later than (A) with respect to any Standby Letter of Credit to
be used for the purposes described in subsection 3.9(a) or (c), one year from
the date of issuance thereof or, if earlier, the Termination Date or (B) with
respect to any Standby Letter of Credit to be used for the purposes described
in subsection 3.9(b), the Termination Date, (ii) be denominated in Dollars and
(iii) be in a minimum face amount of $500,000. Each Commercial Letter of
Credit shall (i) provide for the payment of sight drafts when presented for
honor thereunder, or of time drafts, in each case in accordance with the terms
thereof and when accompanied by the documents described or when such documents
are presented, as the case may be, (ii) be denominated in Dollars and (iii)
have an expiry date no later than six months from the date of issuance thereof
or, if earlier, the Termination Date.
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(b) Pursuant to the Original Credit Agreement, Chemical, as Issuing
Bank, has issued the Letters of Credit described in Schedule 3.1 (the "Existing
Letters of Credit"). From and after the Closing Date, the Existing Letters of
Credit shall for all purposes be deemed to be Letters of Credit outstanding
under this Agreement.
3.2 Procedure for Issuance of Letters of Credit. The Borrower may
from time to time request, upon at least three Business Days' notice, Chemical,
as Issuing Bank, to issue a Letter of Credit by delivering to such Issuing Bank
at its address specified in subsection 11.2 a Letter of Credit Application,
completed to the satisfaction of such Issuing Bank, together with such other
certificates, documents and other papers and information as such Issuing Bank
may reasonably request. Upon receipt of any Letter of Credit Application from
the Borrower, or, in the case of a Foreign Letter of Credit, from the Borrower
and the Foreign Subsidiary that is an account party on such Letter of Credit,
such Issuing Bank will promptly, but in no event later than five Business Days
following receipt of such Letter of Credit Application, notify each Bank
thereof. Upon receipt of any Letter of Credit Application, Chemical, as
Issuing Bank, will process such Letter of Credit Application, and the other
certificates, documents and other papers delivered in connection therewith, in
accordance with its customary procedures and shall promptly issue such Letter
of Credit (but in no event earlier than three Business Days after receipt by
such Issuing Bank of the Letter of Credit Application relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof and by
furnishing a copy thereof to the Borrower and the Participating Banks. In
addition, the Borrower may from time to time agree with Issuing Banks other
than Chemical upon procedures for issuance by such Issuing Banks of Letters of
Credit and cause Letters of Credit to be issued by following such procedures.
Such procedures shall be reasonably satisfactory to the Agent. Notwithstanding
any provision of this Section 3, no Foreign Letter of Credit shall be issued in
connection with any direct or indirect extension of credit to Favesa until such
time that the Agent shall have received (a) executed and delivered security
agreements in the form and substance satisfactory to the Agent granting to the
Agent, for the benefit of the Banks, collateral security for any or all of the
Subsidiary Reimbursement Obligations of Favesa, (b) such additional documents,
and legal opinions in form and substance satisfactory to the Agent of Mexican
counsel acceptable to the Agent and (c) evidence in form and substance
satisfactory to the Agent of the accomplishment of all actions required to
perfect such security being granted; provided that such Foreign Letters of
Credit with the face value not to exceed, in the aggregate, $16,000,000 may be
issued if Holdings and Favesa use their best efforts to grant to the Agent,
pursuant to the terms of this sentence, collateral security of Favesa's real
property and fixtures as soon as reasonably practicable. Prior to the issuance
of any Letter of Credit, the Issuing Bank will confirm with the Agent that the
issuance of
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such Letter of Credit is permitted pursuant to Section 3. Additionally, each
Issuing Bank and the Borrower shall inform the Agent of any modifications made
to outstanding Letters of Credit, of any payments made with respect to such
Letters of Credit, and of any other information regarding such
Letters of Credit as may be reasonably requested by the Agent, in each case
pursuant to procedures established by the Agent.
3.3 Participating Interests. In the case of each Existing Letter of
Credit, effective on the Closing Date, and in the case of each Letter of Credit
issued on or after the Closing Date, effective as of the date of the issuance
thereof, the Issuing Bank in respect of such Letter of Credit agrees to allot
and does allot, to each other Bank, and each such Bank severally and
irrevocably agrees to take and does take a Participating Interest in such
Letter of Credit and the related Letter of Credit Application in a percentage
equal to such Bank's Commitment Percentage. On the date that any Purchasing
Bank becomes a party to this Agreement in accordance with subsection 11.6,
Participating Interests in any outstanding Letter of Credit held by the Bank
from which such Purchasing Bank acquired its interest hereunder shall be
proportionately reallotted between such Purchasing Bank and such transfer or
bank. Each Participating Bank hereby agrees that its obligation to participate
in each Letter of Credit issued hereunder and to pay or to reimburse the
Issuing Bank in respect of such Letter of Credit for its participating share of
the drafts drawn thereunder shall be irrevocable and unconditional; provided
that no Participating Bank shall be liable for the payment of any amount under
subsection 3.4(b) resulting solely from such Issuing Bank's gross negligence or
willful misconduct.
3.4 Payments. (a) The Borrower agrees (and in the case of a Foreign
Letter of Credit, such Foreign Subsidiary for whose account such Letter of
Credit was issued shall also agree, jointly and severally) (i) to reimburse the
Agent for the account of the relevant Issuing Bank, forthwith upon its demand
and otherwise in accordance with the terms of the Letter of Credit Application,
if any, relating thereto, for any payment made by such Issuing Bank under any
Letter of Credit issued by such Issuing Bank for its account and (ii) to pay to
the Agent for the account of such Issuing Bank, interest on any unreimbursed
portion of any such payment from the date of such payment until reimbursement in
full thereof at a fluctuating rate per annum equal to the rate then borne by
ABR Loans pursuant to subsection 4.1(a) plus 2%.
(b) In the event that an Issuing Bank makes a payment under any Letter
of Credit and is not reimbursed in full therefor, forthwith upon demand of such
Issuing Bank, and otherwise in accordance with the terms hereof or of the
Letter of Credit Application, if any, relating to such Letter of Credit, such
Issuing Bank will promptly through the Agent notify each Participating Bank that
acquired its Participating Interest in
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such Letter of Credit from such Issuing Bank. No later than the close of
business on the date such notice is given, each such Participating Bank will
transfer to the Agent, for the account of such Issuing Bank, in immediately
available funds, an amount equal to such Participating Bank's pro rata share of
the unreimbursed portion of such payment. Upon its receipt from such
Participating Bank of such amount, such Issuing Bank will, if so requested by
such Participating Bank, complete, execute and deliver to such Participating
Bank a Letter of Credit Participation Certificate dated the date of such
receipt and in such amount.
(c) Whenever, at any time, after an Issuing Bank has made payment
under a Letter of Credit and has received from any Participating Bank such
Participating Bank's pro rata share of the unreimbursed portion of such
payment, such Issuing Bank receives any reimbursement on account of such
unreimbursed portion of any payment of interest on account thereof, such
Issuing Bank will distribute to the Agent, for the account of such
Participating Bank, its pro rata share thereof; provided, however, that in
the event that the receipt by such Issuing Bank of such reimbursement or such
payment of interest (as the case may be) is required to be returned, such
Participating Bank will promptly return to the Agent, for the account of such
Issuing Bank, any portion thereof previously distributed by such Issuing Bank to
it.
3.5 Increased Costs. (a) In the event that any Requirement of Law (or
any change therein or in the interpretation or application thereof) or
compliance by any Bank with any request or directive (whether or not having the
force of law) from any central bank or other Governmental Authority shall enter
(i) impose, modify or hold applicable any reserve, special deposit or similar
requirement against letters of credit issued by an Issuing Bank or participated
in by other Banks or (ii) impose upon an Issuing Bank or on any other Bank any
other condition regarding any Letter of Credit and the result of any event
referred to in clause (i) or (ii) above shall be to increase the cost to such
Issuing Bank or any other Bank of issuing or maintaining such Letter of Credit
(or its participation therein, as the case may be), or to reduce any amount
receivable in connection therewith then, in any such case the Borrower shall,
without duplication of any amounts paid pursuant to subsection 2.12(a),
promptly pay to such Issuing Bank or such other Bank, as the case may be, upon
receipt of its demand setting forth in reasonable detail any additional amounts
which shall be sufficient to compensate such Issuing Bank or such other Bank
for such increased cost or reduced amount receivable, together with interest on
each such amount from the date two Business Days after the date demanded until
payment in full thereof at the ABR. A certificate as to the fact and amount of
such increased cost incurred by such Issuing Bank or such other Bank or such
reduced amount receivable as a result of any event
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mentioned in clause (i) or (ii) above, submitted by such Issuing Bank or any
such other Bank (through the Agent) to the Borrower, shall be conclusive in the
absence of manifest error.
(b) In the event that an Issuing Bank shall have determined that the
adoption of any law, rule, regulation or guideline regarding capital adequacy,
or any change therein or in the interpretation or application thereof or
compliance by such Issuing Bank or any corporation controlling such Issuing
Bank with any request or directive regarding capital adequacy (whether or not
having the force of law) from any central bank or Governmental Authority,
including, without limitation, the issuance of any final rule, regulation or
guideline, does or shall have the effect of reducing the rate of return on such
Issuing Bank's or such corporation's capital as a consequence of its
obligations hereunder to a level below that which such Issuing Bank or such
corporation could have achieved but for such adoption, change or compliance
(taking into consideration such Issuing Bank's or such corporation's policies
with respect to capital adequacy) by an amount deemed by such Issuing Bank to
be material, then from time to time, after submission by such Issuing Bank to
the Borrower (with a copy to the Agent) of a written request therefor, the
Borrower shall promptly pay to such Issuing Bank, without duplication of any
amounts paid pursuant to subsection 2.12(b), such additional amount or amounts
as will compensate such Issuing Bank for such reduction.
3.6 Further Assurances. (a) The Borrower hereby agrees, from time to
time, to do and perform any and all acts and to execute any and all further
instruments reasonably requested by an Issuing Bank more fully to effect the
purposes of this Agreement and the issuance of the Letters of Credit opened
hereunder.
(b) It is understood that in connection with Letters of Credit issued
for the purposes described in subsection 3.9(b) it may be customary for the
Issuing Bank in respect of such Letter of Credit to obtain an opinion of its
counsel relating to such Letter of Credit, and each Issuing Bank that issues
such a Letter of Credit agrees to cooperate with the Borrower in obtaining such
customary opinion, which opinion shall be at the Borrower's expense unless
otherwise agreed to by such Issuing Bank.
3.7 Obligations Absolute. The payment obligations of the Borrower
under subsection 3.4 shall be unconditional and irrevocable and shall be paid
strictly in accordance with the terms of this Agreement under all
circumstances, including, without limitation, the following circumstances:
(a) the existence of any claim, set-off, defense or other right which
the Borrower may have at any time against any beneficiary, or any transferee,
of any Letter of Credit (or any Persons for whom any such beneficiary or any
such
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transferee may be acting), any Issuing Bank or any Participating Bank,
or any other Person, whether in connection with this Agreement, the
transactions contemplated herein, or any unrelated transaction;
(b) any statement or any other document presented
under any Letter of Credit opened for its account proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(c) payment by an Issuing Bank under any Letter of Credit against
presentation of a draft or certificate which does not comply with the
terms of such Letter of Credit, except payment resulting solely from the
gross negligence or willful misconduct of such Issuing Bank; or
(d) any other circumstances or happening whatsoever, whether or not
similar to any of the foregoing, except circumstances or happenings
resulting from the gross negligence or willful misconduct of such Issuing
Bank.
3.8 Letter of Credit Application. To the extent not inconsistent with
the terms of this Agreement (in which case the provisions of this Agreement
shall prevail), provisions of any Letter of Credit Application related to any
Letter of Credit are supplemental to, and not in derogation of, any rights and
remedies of the Issuing Banks and the Participating Banks under this Section 3
and applicable law. The Borrower acknowledges and agrees that all rights of
the Issuing Bank under any Letter of Credit Application shall inure to the
benefit of each Participating Bank to the extent of its Commitment Percentage
as fully as if such Participating Bank was a party to such Letter of Credit
Application.
3.9 Purpose of Letters of Credit. Each Standby Letter of Credit shall
be used by the Borrower solely (a) to provide credit support for borrowings by
Subsidiaries, (b) to pay or secure the payment of the principal amount of, and
accrued interest on, and other obligations with respect to, Industrial Revenue
Bonds in accordance with the provisions of the indenture related thereto, or
(c) for other working capital purposes of the Borrower and Subsidiaries in the
ordinary course of business. Each Commercial Letter of Credit will be used by
the Borrower and Subsidiaries solely to provide the primary means of payment in
connection with the purchase of goods or services by the Borrower and
Subsidiaries in the ordinary course of business.
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