ulh-ex102_58.htm



 

Exhibit 10.2

 

SECOND AMENDMENT TO CREDIT AGREEMENT

 

This Second Amendment to Credit Agreement (“Amendment”) dated April 27, 2017, but with effect as of December 31, 2016, is made by and among Westport Axle Corp. (the “Borrower”), the Lenders (as defined below) and Comerica Bank, as administrative agent for the Lenders (in such capacity, “Agent”).

 

RECITALS

 

A.The Borrower entered into that certain Credit Agreement dated as of December 23, 2015, as amended by First Amendment to Credit Agreement dated as of April 18, 2016 (as further amended, restated or otherwise modified from time to time, the “Credit Agreement”) with Agent and the financial institutions from time to time signatory thereto (each, individually a “Lender,” and any and all such financial institutions collectively the “Lenders”), under which the Lenders extended (or committed to extend) credit to the Borrower, as set forth therein.

 

B.The Borrower has requested that Agent and the Lenders agree to certain amendments to the Credit Agreement and the Security Agreement, and Agent and the Lenders are willing to do so, but only on the terms and conditions set forth in this Amendment.

 

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Borrower, Agent and the Lenders agree as follows:

 

1.Amendments.

 


	
 
	
(a)
	
Section 7.9(a) of the Credit Agreement is amended entirely to read as follows:




 

(a)Maintain at all times a Total Debt to EBITDA Ratio of not more than the ratio set forth below during the applicable period after taking into account whether the Machining Division Sale has occurred:

 


			
	
Applicable Period
	
Applicable Ratio until Machining Division Sale
	
Applicable Ratio upon and after Machining Division Sale

	
Effective Date through March 31, 2017
	
3.00:1.00
	
2.25:1.00

	
April 1, 20171 through

December 30, 2017
	
2.75:1.00
	
2.00:1.00

	
December 31, 2017 through

December 30, 2018
	
2.50:1.00
	
1.75:1.00

	
December 31, 2018 through

December 30, 2019
	
2.25:1.00
	
1.75:1.00

	
December 31, 2019 through

December 30, 2020
	
2.00:1.00
	
1.75:1.00




 



1 Noting for the purposes of clarity that Borrower’s first fiscal quarter for the 2017 Fiscal Year ends on April 1, 2017.

 



 

 
 


 

 


			
	
December 31, 2020 and thereafter
	
1.75:1.00
	
1.75:1.00




 

2.Waiver. With specific reference to Section 7.1(a) of the Credit Agreement, the Lenders and Agent hereby waive the requirement that Borrower furnish to Agent within 120 days after December 31, 2016, the audited Consolidated financial statements of Borrower and its Consolidated Subsidiaries as at December 31, 2016, and the related audited Consolidated statements of income, stockholders equity, and cash flows of Borrower and its Consolidated Subsidiaries (the “2016 Audited Financial Statements”) as long as the 2016 Audited Financial Statements are furnished to Agent no later than May 15, 2017. This waiver is not a waiver of or consent to any other event, condition, transaction, act or omission whether related or unrelated to the furnishing of the 2016 Audited Financial Statements, except as expressly stated above.

 

3.Conditions. This Amendment shall become effective (according to the terms hereof) on the date that the following condition has been fully satisfied by the Borrower:

 


	
 
	
(a)
	
Agent shall have received executed facsimile or email counterparts of this Amendment duly executed and delivered by Agent, the Lenders and the Borrower, with originals following promptly thereafter;
	
 




 


	
 
	
(b)
	
The Borrower shall have paid to Agent, for the pro rata account of the Lenders, an amendment fee of $35,000.00; and
	
 




 


	
 
	
(c)
	
The Borrower shall have paid to Agent any fees due under the terms of the Supplemental Agency Fee Letter dated April 26, 2017 (the “Supplemental Fee Letter”), along with any other fees, costs or expenses due and outstanding to the Agent or the Lenders under the Supplemental Fee Letter or hereunder as of the date hereof (including reasonable fees, disbursements and other charges of counsel to Agent).
	
 




 

4.Authority. The Borrower hereby certifies that it has taken all necessary actions to authorize this Amendment and the other Loan Documents delivered herewith, supported by appropriate resolutions, that no consents or other authorizations of any third parties are required in connection therewith, and that either there have been no changes in the organizational documents previously delivered to Agent or that true and accurate copies of organizational documents are being provided to Agent with the certificate.

 

5.Representations and Warranties. The Borrower hereby represents and warrants that, after giving effect to any amendments and consents contained herein, execution and delivery of this Amendment and the other Loan Documents delivered herewith and the performance by the Borrower of its obligations under the Credit Agreement as amended hereby (herein, as so amended, the “Amended Credit Agreement”) are within its corporate powers, have been duly authorized, are not in contravention of law or the terms of its articles of incorporation or bylaws, and do not require the consent or approval of any governmental body, agency or authority, and the Amended Credit Agreement will constitute the valid and binding obligations of the Borrower enforceable in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance, ERISA or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (whether enforcement is sought in a proceeding in equity or at law). The Borrower hereby reaffirms, covenants and agrees to be bound by all the terms and conditions of the Amended Credit Agreement and each of the other Loan Documents.

 

6.No Other Changes.  Except as specifically set forth herein, this Amendment shall not be deemed to amend or alter in any respect the terms and conditions of the Credit Agreement or any of the other

 

- 2 -

 



 

Loan Documents. The Borrower hereby acknowledges and agrees that this Amendment and the amendments contained herein do not constitute any course of dealing or other basis for altering any obligation of the Borrower, or any other Credit Party or any other party or any rights, privilege or remedy of Agent or the Lenders under the Credit Agreement, any other Loan Document, any other agreement or document, or any contract or instrument except as specifically set forth herein. Furthermore, this Amendment shall not affect in any manner whatsoever any rights or remedies of the Lenders or Agent with respect to any non-compliance by the Borrower with the Credit Agreement or the other Loan Documents, whether in the nature of a Default or Event of Default, and whether now in existence or subsequently arising, and shall not apply to any other transaction.

 

7.Ratification. The Borrower hereby reaffirms, confirms, ratifies and agrees to be bound by each of its covenants, agreements and obligations under the Amended Credit Agreement and each other Loan Document previously executed and delivered by it, or executed and delivered in accordance with this Amendment. Each reference in the Credit Agreement to “this Agreement” or “the Credit Agreement” shall be deemed to refer to Credit Agreement as amended by this Amendment and each other amendment made to the Credit Agreement from time to time.

 

8.Defined Terms. Unless otherwise defined to the contrary herein, all capitalized terms used in this Amendment shall have the meanings set forth in the Credit Agreement.

 

9.Confirmation of Lien Upon Collateral. The Borrower acknowledges and agrees that the Indebtedness is secured by the Collateral and that its obligations under the Security Agreement dated as of December 23, 2015, by and among Borrower, such other entities which from time to time become parties thereto, and Agent, for and on behalf of the Lenders constitute valid, legal, and binding agreements and obligations of the Borrower. The Collateral is and shall remain subject to and encumbered by the lien, charge, and encumbrance of any applicable Loan Document, and nothing herein contained shall affect or be construed to affect the lien or encumbrance created by any applicable Loan Document respecting the Collateral, or its priority over other liens or encumbrances.

 

10.Successors and Assigns. This Amendment shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.

 

11.Other Modification. In executing this Amendment, the Borrower is not relying on any promise or commitment of Agent or the Lenders that is not in writing signed by Agent and the Lenders.

 

12.Expenses. The Borrower shall promptly pay all out-of-pocket fees, costs, charges, expenses, and disbursements of Agent and the Lenders incurred in connection with the preparation, execution, and delivery of this Amendment, and the other documents contemplated by this Amendment.

 

13.Governing Law. This Amendment shall be a contract made under and governed by the internal laws of the State of Michigan, and may be executed in counterpart, in accordance with Section 13.9 of the Credit Agreement. Each of the parties hereto agrees that this Amendment and any other Loan Document signed by it and transmitted by facsimile or email or any other method of delivery shall be admissible in evidence as the original itself in any judicial or administrative proceeding whether or not the original is in existence.

 

[Remainder of Page Intentionally Blank]

 

- 3 -

 



 

IN WITNESS WHEREOF, the Borrower, the Lenders and Agent have each caused this Second Amendment to Credit Agreement to be executed by their respective duly authorized officers or agents, as applicable, all as of the date first set forth above.

 

 

 


			
	
Westport Axle Corp.
	
 
	
Comerica Bank, as Agent

	
 
	
 
	
 

	
By:       /s/ Jude M. Beres       
	
 
	
By:  /s/ Kelly McConnell         

	
Name:  Jude M. Beres            
	
 
	
Name:  Kelly C. McConnell

	
Title:   CFO                           
	
 
	
Title:    Vice President

	
 
	
 
	
 

	
 
	
 
	
 

	
 
	
 
	
Comerica Bank, as a lender, Issuing Lender and a Swing Line Lender

	
 
	
 
	
 

	
 
	
 
	
By:  /s/ Kelly McConnell         

	
 
	
 
	
Name:  Kelly C. McConnell

	
 
	
 
	
Title:    Vice President




 

 

- 4 -

 



 [continuation signature page for Second Amendment to Credit Agreement]

 


		
	
THE HUNTINGTON NATIONAL BANK
	
 

	
 
	
 

	
 
	
 

	
By:   /s/ Joseph K. Zayance          
	
 

	
Name:  Joseph K. Zayance
	
 

	
Title:     Senior Vice President
	
 




 

- 5 -