Exhibit 10-X(2)
AMENDMENT NO. 2 TO THE SENIOR SECURED SUPERPRIORITY
CREDIT AGREEMENT
DATED AS OF APRIL 12, 2006
AMENDMENT NO. 2 TO THE SECURED SUPERPRIORITY CREDIT AGREEMENT (this
"Amendment") among Dana Corporation, a Virginia corporation and a debtor and
debtor-in-possession in a case pending under chapter 11 of the Bankruptcy Code
(the "Borrower"), the Guarantors party hereto, each of which is a debtor and
debtor-in-possession in a case pending under chapter 11 of the Bankruptcy Code,
the financial institutions and other institutional lenders party hereto, and
Citicorp North America, Inc. ("CNAI"), as administrative agent (the
"Administrative Agent") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Guarantors, the financial institutions and other
institutional lenders party thereto (the "Lenders"), the Administrative Agent
and the other agents party thereto have entered into a Senior Secured
Superpriority Credit Agreement dated as of March 3, 2006, as amended by
Amendment No.1 to the Senior Secured Superpriority Credit Agreement dated as of
March 30, 2006 (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 Required Lenders agree to
amend certain provisions of the Credit Agreement as described herein.
(3) The Initial Lenders and the Required Lenders have agreed, subject
to the terms and conditions stated below, to amend the Credit Agreement as
hereinafter set forth.
SECTION 1. Amendments to Credit Agreement.
(a) Section 1.01 of the Credit Agreement is hereby amended by by
inserting the following new terms in the correct alphabetical order:
"Mexican Collateral" has the meaning set forth in Section 9.01.
"Mexican Depository" shall mean each Subsidiary of the Borrower
domiciled in Mexico that is at any time in possession of Inventory
owned by any Loan Party and included in the calculation of Elibigle
Inventory, in each case in its capacity as depository of the Mexican
Collateral, or any succesor depository thereof.
(b) Section 1.01 of the Credit Agreement is hereby further amended in
the definition of "Applicable Margin" by amending and restating clause (a) as
follows:
"(a) in respect of the Term Facility, 2.25% per annum, in the case of
Eurodollar Advances, and 1.25% per annum, in the case of Base Rate
Advances,"
(c) Section 5.02(h) of the Credit Agreement is hereby amended in
clause (iii) by (i) deleting the word "(c)" therein and replacing it with the
words "or (C)" and (ii) deleting clause (E) therein.
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(d) Section 5.02(j) of the Credit Agreement is hereby amended by (i)
inserting a new clause (w) in the proviso therein as follows:
"(w) the Borrower may make payments pursuant to the Order approving
Stipulation Among the Debtors, the Official Committee of Unsecured
Creditors, the Debtors' Postpetition Lenders and the Pension Benefit
Guaranty Corporation Regarding the Debtors' April 15, 2006 Pension
Funding Payment entered by the Bankruptcy Court,"
and (ii) amending and restating clause (z) in the proviso therein in its
entirety as follows:
"(z) the Borrower may make payments to such other claimants and in
such amounts as may be consented to by the Initial Lenders and
approved by the Bankruptcy Court."
(e) Section 5.03(c) of the Credit Agreement is hereby amended by (i)
deleting the words "up to 60 days" in the first parenthetical contained therein
and (ii) inserting the words "and in the case of the first quarter of 2006, by
May 31, 2006," after the first parenthetical contained therein.
(f) Section 6.01(n) of the Credit Agreement is hereby amended by
inserting the words ", the Interim Order, Final Order, the First Day Orders,
pursuant to Section 5.02 (j), in connection with any Lien permitted pursuant to
Section 5.02(a)(ii) through (vii) or in connection with any pre-petition Lien on
cash collateral securing a performance obligation (other than indebtedness for
borrowed money)" immediately prior to the semicolon at the end thereof.
(g) Section 9.01 of the Credit Agreement is hereby amended by
inserting the following at the end thereof:
" For purposes of perfecting the first priority Lien and security
interest on any Collateral held from time to time by any Mexican
Depository in connection with the manufacture in Mexico of finished
products by such Mexican Depository (the "Mexican Collateral"), each
Loan Party hereby pledges to the Administrative Agent, for itself and
for the ratable benefit of the Secured Parties, as security for the
full and prompt payment whe due (whether at stated maturity, by
acceleration or otherwise) of the Secured Obligations, the Mexican
Collateral in accordance with paragraph IV of Article 334 of the
Mexican General Law of Negotiable Instruments and Credit Transactions
(Ley General de Titulos y Operaciones de Credito).
Each Loan Party and the Administrative Agent hereby appoints each
Mexican Depository as depository of the Mexican Collateral. The
parties hereto agree that each Mexican Depository may from time to
time in the ordinary course of business receive and maintain
possession of the Mexican Collateral for the purpose of manufacturing
finished products for sale by such Loan Party and shall act as
depository for the benefit of the Administrative Agent, on behalf of
itself and the Secured Parties, with respect to such Mexican
Collateral, which shall at all times remain subject to the first
priority Lien and security interest created hereunder. Each Loan Party
acknowledges and agrees that each Mexican Depository shall hold any
and all Mexican Collateral in its control or possession for the
benefit of Administrative Agent, on behalf of itself and the Secured
Parties, and that each Mexican Depository shall act upon the
instructions of the
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Administrative Agent without the further consent of such Loan Party.
The Administrative Agent agrees with the Loan Parties that it shall
not give any such instructions unless an Event of Default has occurred
and is continuing or would occur after taking into account any action
by any Loan Party with respect to any Mexican Depository.
If an Event of Default has occurred and is continuing, the
Administrative Agent shall be entitled, without the consent of any
Loan Party, to remove any Mexican Depository as depository and appoint
a different depository. No Mexican Depository shall be released from
its obligations hereunder, unless a replacement depository has been
appointed in accordance with this Agreement and such replacement
depository has assumed the obligations of such Mexican Depository
hereunder, including without limitation, taking physical possession of
the Mexican Collateral and executing the letter referred to in the
immediately succeeding paragraph.
Upon the request of the Administrative Agent, each Loan Party
shall deliver to the Administrative Agent, a letter from each Mexican
Depository or any other entity acting as depository, acceptable to the
Administrative Agent in substantially in the form of Exhibit J
hereto."
(h) Annex I hereto is inserted as a new Exhibit J to the Credit
Agreement.
SECTION 2. Conditions of Effectiveness. This Amendment shall become
effective as of the date first above written when, and only when, the following
conditions have been satisfied, and concurrent with the Borrowing of the Term
Facility:
(a) the Administrative Agent shall have received counterparts of this
Amendment executed by each Loan Party and the Required Lenders or, as to
any of the Lenders, advice satisfactory to the Agent that such Lender has
executed this Amendment,
(b) the Administrative Agent shall have received a certificate signed
by a duly authorized officer of the Borrower stating that: (x) the
representations and warranties contained in Article IV of the Credit
Agreement are true and correct in all material respects on and as of the
date of such certificate as though made on and as of such date other than
any such representations or warranties that, by their terms, refer to a
date other than the date of such certificate; and (y) no event has occurred
and is continuing that constitutes a Default, and
(c) all fees and expenses of the Administrative Agent and the Lenders
(including all reasonable fees and expenses of counsel to the
Administrative Agent), to the extent invoiced prior to the date hereof,
shall have been paid.
SECTION 3. Confirmation of Representations and Warranties. Each of the
Loan Parties hereby represents and warrants, on and as of the date hereof, that
the representations and warranties contained in the Credit Agreement are true
and correct in all material respects on and as of the date hereof, before and
after giving effect to this Amendment, as though made on and as of the date
hereof, other than any such representations or warranties that, by their terms,
refer to a specific date.
SECTION 4. Affirmation of Guarantors. Each Guarantor hereby consents
to the amendments to the Credit Agreement effected hereby, and hereby confirms
and agrees that, notwithstanding the effectiveness of this Amendment, the
obligations of such Guarantor contained in
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Article VIII of the Credit Agreement, as amended hereby, or in any other Loan
Documents to which it is a party are, and shall remain, in full force and effect
and are hereby ratified and confirmed in all respects, except that, on and after
the effectiveness of this Amendment, each reference in Article VIII of the
Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like
import shall mean and be a reference to the Credit Agreement, as amended by this
Amendment.
SECTION 5. Reference to and Effect on the Loan Documents. (a) On and
after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement and each reference in the Notes and each of
the other Loan Documents to "the Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended by this Amendment.
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, as specifically amended by this Amendment, are and shall continue to
be in full force and effect and are hereby in all respects ratified and
confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Administrative Agent under the Credit
Agreement or any other Loan Document, nor constitute a waiver of any provision
of the Credit Agreement or any other Loan Document.
SECTION 6. Costs, Expenses. The Borrowers agree to pay on demand all
costs and expenses of the Administrative Agent in connection with the
preparation, execution, delivery and administration, modification and amendment
of this Amendment and the other instruments and documents to be delivered
hereunder (including, without limitation, the reasonable fees and expenses of
counsel for the Administrative Agent) in accordance with the terms of Section
10.04 of the Credit Agreement.
SECTION 7. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 8. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York, and to the
extent applicable, the Bankruptcy Code.
[The remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
DANA CORPORATION,
a debtor and debtor-in-possession, as
Borrower
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Treasurer
By /s/ Michael L. DeBacker
-------------------------------------
Name: Michael L. DeBacker
Title: Vice President-General
Counsel & Secretary
BRAKE SYSTEMS, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
BWDAC, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
COUPLED PRODUCTS, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
DAKOTA NEW YORK CORP.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Treasurer
DANA ATLANTIC LLC FKA GLACIER DAIDO
AMERICA, LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President
DANA AUTOMOTIVE AFTERMARKET, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Treasurer
DANA BRAZIL HOLDINGS LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
DANA BRAZIL HOLDINGS I LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: President
DANA INFORMATION TECHNOLOGY LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
DANA INTERNATIONAL FINANCE, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: President
DANA INTERNATIONAL HOLDINGS, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Treasurer
DANA RISK MANAGEMENT SERVICES, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President
DANA TECHNOLOGY INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Treasurer
DANA WORLD TRADE CORPORATION
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Treasurer
DANDORR L.L.C.
As a debtor and a debtor-in-possession,
and as a Guarantor
By Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President
DORR LEASING CORPORATION
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
DTF TRUCKING INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
ECHLIN-PONCE, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
EFMG LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
EPE, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
ERS LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
FLIGHT OPERATIONS, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President
FRICTION INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
FRICTION MATERIALS, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
GLACIER VANDERVELL INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
HOSE & TUBING PRODUCTS, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
LIPE CORPORATION
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
LONG AUTOMOTIVE LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
LONG COOLING LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
LONG USA LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
MIDLAND BRAKE, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
PRATTVILLE MFG., INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
REINZ WISCONSIN GASKET LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President
SPICER HEAVY AXLE & BRAKE, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
SPICER HEAVY AXLE HOLDINGS, INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Treasurer
SPICER OUTDOOR POWER EQUIPMENT
COMPONENTS LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President
TORQUE-TRACTION INTEGRATION TECHNOLOGIES
LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
TORQUE-TRACTION MANUFACTURING
TECHNOLOGIES LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
TORQUE-TRACTION TECHNOLOGIES LLC
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
UNITED BRAKE SYSTEMS INC.
As a debtor and a debtor-in-possession,
and as a Guarantor
By /s/ Teresa Mulawa
-------------------------------------
Name: Teresa Mulawa
Title: Vice President & Treasurer
CITICORP NORTH AMERICA, INC.,
as Administrative Agent and Lender
By /s/ Shapleigh Smith
-------------------------------------
Name: Shapleigh B. Smith
Title: Managing Director
JPMORGAN CHASE BANK, N.A., as Lender
By /s/ Richard Duker
-------------------------------------
Name: Richard W. Duker
Title: Managing Director
BANK OF AMERICA, N.A., as Lender
By /s/ Brian J. Wright
-------------------------------------
Name: Brian J. Wright
Title: SVP
Annex I to Amendment No. 2 to
the Senior Secured Superpriority
Credit Agreement
Exhibit J to
Credit Agreement
[Date]
Citicorp North America, Inc., as
Administrative Agent under the
Credit Agreement referred to below,
on behalf of itself and the parties
thereto
Ladies and Gentlemen:
We understand that Dana Corporation ("Dana Corporation"), as borrower,
and Brake Systems, Inc., BWDAC, Inc., Coupled Products, Inc., Dakota New York
Corp., Dana Atlantic, LLC, FKA Glacier Daido America, LLC, Dana Automotive
Aftermarket, Inc., Dana Brazil Holdings LLC, Dana Information Technology LLC,
Dana International Finance, Inc., Dana International Holdings, Inc., Dana Risk
Management Services, Inc., Dana Technology Inc., Dana World Trade Corporation,
Dandorr L.L.C., Dorr Leasing Corporation, DTF Trucking Inc., Echlin-Ponce, Inc.,
EFMG LLC, EPE, Inc., ERS LLC, Flight Operations, Inc., Friction Inc., Friction
Materials, Inc., Glacier Vandervell Inc., Hose and Tubing Products, Inc., Lipe
Corporation., Long Automotive LLC, Long Cooling LLC, Long USA LLC, Midland
Brake, Inc., Prattville MFG., Inc., Reinz Wisconsin Gasket LLC, Spicer Heavy
Axle & Brake, Inc., Spicer Heavy Axle Holdings, Inc., Spicer Outdoor Power
Equipment Components LLC, Torque-Traction Integration Technologies, Inc.,
Torque-Traction Manufacturing Technologies LLC, Torque-Traction Technologies
LLC, United Brake Systems Inc., as guarantors (such companies, collectively,
together with Dana Corporation, the "Dana Companies"), entered into that certain
$1,450,000,000 Senior Secured Superpriority Credit Agreement, dated as of March
3, 2006 (as amended, amended and restated, supplemented or modified from time to
time, the "Credit Agreement"), with Citicorp North America, Inc. as
administrative agent (the "Administrative Agent"), and other parties party
thereto.
We further understand that each of the Dana Companies pledged to the
Administrative Agent, for itself and for the benefit of the parties party to the
Credit Agreement (the "Secured Parties"), any inventory, materials, machinery,
equipment or any other asset that we receive from any of the Dana Companies from
time to time in the ordinary course of business for the purpose of manufacturing
finished products for any of such Dana Companies in Mexico and the proceeds
thereof (the "Mexican Collateral"), in accordance with paragraph IV of Article
334 of the Mexican General Law of Negotiable Instruments and Credit Transactions
(Ley General de Titulos y Operaciones de Credito), and that we have been
appointed by each of the Dana Companies and the Administrative Agent as
depository of the Mexican Collateral.
We hereby accept our appointment as depository of the Mexican
Collateral, and shall act as depository for the benefit of the Administrative
Agent, on behalf of itself and the Secured Parties, with respect to such Mexican
Collateral, which shall at all times remain subject to the first priority lien
and security interest created under the Credit Agreement. We hereby
agree to hold in custody the Mexican Collateral at our facilities located at the
address in Mexico shown below our signature block hereof, and further agree that
we will receive no consideration for the performance of our duties hereunder.
We hereby acknowledge and agree that we shall hold any Mexican
Collateral in our control or possession for the benefit of the Administrative
Agent, on behalf of itself and the Secured Parties, and that we shall act upon
the instructions of Administrative Agent without the further consent of any of
the Dana Companies with respect to the Mexican Collateral.
The execution of this Letter Agreement constitutes an acknowledgment
of receipt by us of the Mexican Collateral that we currently have in our
possession.
We hereby further acknowledge and agree that the Administrative Agent
shall be entitled, without the consent of any of the Dana Companies, to remove
us as depository of the Mexican Collateral. Notwithstanding the foregoing, we
shall not be released from any of our obligations hereunder, unless a
replacement depository has been appointed and such replacement depository has
assumed its obligations as depository with respect to the Mexican Collateral,
including without limitation, taking physical possession of the Mexican
Collateral.
Sincerely,
[NAME OF MEXICAN DEPOSITORY]
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
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