First Amendment dated as of October 13, 2006

Gary Findling

EX-10.20 2 k13931exv10w20.htm FIRST AMENDMENT DATED AS OF OCTOBER 13, 2006 exv10w20

Exhibit 10.20

FIRST AMENDMENT

THIS FIRST AMENDMENT (this “Amendment”), is dated August 31, 2006, and relates to that certain (a) Receivables Financing Agreement, dated as of May 30, 2006 (as amended, restated, supplemented or otherwise modified from time to time, the “Financing Agreement”), among Hayes Funding II, Inc., a Delaware corporation (“Hayes II”), the financial institutions from time to time party thereto (each a “Lender” and collectively, the “Lenders”), Citicorp USA, Inc., a Delaware corporation (“CUSA”), as program agent (the “Program Agent”) for the Lenders and HLI Operating Company, Inc. as “Servicer” (“HLIOC”), (b) Secondary Purchase Agreement, dated as of May 30, 2006 (as amended, restated, supplemented or otherwise modified from time to time, the “Secondary Purchase Agreement”), among Hayes II and Hayes Funding I, LLC (“Hayes I”), and (c) Originator Purchase Agreement, dated as of May 30, 2006 (as amended, restated, supplemented or otherwise modified from time to time, the “Originator Purchase Agreement”), among the persons listed on Schedule 1 thereto as “Originators” and Hayes I, and is hereby made by Hayes I, Hayes II, the Program Agent, the Required Lenders, on behalf of the Lenders, and the Originators (as defined immediately prior to giving effect to this Amendment). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Financing Agreement, or if not defined therein, in the Originator Purchase Agreement, or if not defined therein, in the Secondary Purchase Agreement, in each case, as modified hereby.

W I T N E S S E T H:

WHEREAS, HLIOC has advised Hayes I, Hayes II and the Program Agent that HLIOC has agreed to sell all of the issued and outstanding shares of capital stock of Hayes Lemmerz International – Southfield, Inc. (“Southfield”) pursuant to that certain Stock Purchase Agreement, dated August 31, 2006, among Minor Investments, LLC, a Michigan limited liability company, TRA Investments, LLC, a Michigan limited liability company, AWB Investments, LLC, a Michigan limited liability company, and Whitebox Hedged High Yield/Cadillac Casting Acquisition, Ltd., a British Virgin Islands company, Southfield and HLIOC (the transactions relating thereto, the “Sale Transaction”);

WHEREAS, Southfield has requested that, in connection with the consummation of the Sale Transaction, that the Program Agent, the Required Lenders, on behalf of the Lenders, Hayes II and Hayes I consent to the removal of Southfield as an Originator pursuant to Section 2.09 of the Originator Purchase Agreement and the definition of “Originator” in the Financing Agreement (the “Southfield Removal”);

In connection with the Southfield Removal and Sale Transaction, Southfield and Hayes I have requested that, following the consummation of the Sale Transaction, Hayes II reconvey, and release all security interests in, all Receivable Assets sold, or purported to be sold, by Southfield to Hayes I and subsequently by Hayes I to Hayes II (the “Southfield Receivable Assets”; such transaction, the “Reconveyance”), and Hayes II has requested that Program Agent and the Required Lenders, on behalf of the Lenders, release all security interests in the Southfield Receivable Assets.

First Amendment

WHEREAS, the Program Agent, the Required Lenders, on behalf of the Lenders, Hayes I, Hayes II, and the Originators are willing to grant the requested consent on the terms and conditions set forth herein;

NOW, THEREFORE, in consideration of the foregoing premises, the parties hereto agree as follows:

1. Consent, Amendments and Reconveyance As of Effective Date. As of the “Effective Date” (as defined in Section 3 below):

(a) The Program Agent, the Required Lenders, on behalf of the Lenders, Hayes I, Hayes II and the Originators hereby consent to the Southfield Removal following the consummation of the Sale Transaction.

(b) Each of Schedule 1 and Exhibit C to the Originator Purchase Agreement shall be amended and restated by such schedules and exhibits attached as Exhibit A hereto to reflect the Southfield Removal.

(c) Schedule 1.01-4 of the Financing Agreement shall be amended by deleting “Hayes Lemmerz International – Southfield, Inc.” under the reference to “Originators” thereon.

(d) Each Weekly Report delivered by HLIOC under the Financing Agreement shall detail the collections received by Hayes II, HLIOC, or Hayes I from Southfield Receivable Assets during the related calendar week and shall report as to the timing of segregation and disbursement of such collections; it being agreed and understood that pursuant to the definition of “Weekly Report”, such report is to include additional information requested by Program Agent from time to time, and that pursuant to this Amendment such additional information is hereby requested.

(e) On each Payment Date, HLIOC shall provide a written report to Program Agent (i) certifying that no collections from Southfield Receivable Assets have been deposited in the Facility Account and (ii) detailing any collections received from Southfield Receivable Assets since the date last reported to the Program Agent and reporting as to the timing of segregation and disbursement of such collections; it being agreed and understood that pursuant to Section 6.02(g)(iv) of the Financing Agreement, Program Agent has the right to so request such information.

(f) HLIOC agrees that it will, on the Effective Date, cause Southfield to send written notice to each Obligor of Southfield Receivable Assets to remit payment to a deposit account other than a Deposit Account (and a lockbox other than a Lockbox) and a Person other than HLIOC, Hayes II, and Hayes I. Should notwithstanding such instructions any collections from Southfield Receivable Assets be remitted to HLIOC, Hayes II, Hayes I, any Deposit Account or any Lockbox, HLIOC shall promptly (and in any event within one Business Day) segregate such collections from the Collections and disburse such collections from such Deposit Account or Lockbox or otherwise remit such collections so received to the acquirer of Southfield.

First Amendment

(g) The Program Agent, on behalf of the Lenders, hereby releases all security interests with respect to, and Hayes II hereby accepts and receives, all of the Program Agent’s right, title and interest in and to the Collateral arising out of, or relating to, Receivables originated by Southfield (the “Reconveyed Property”). As a condition to the foregoing conveyance of the Reconveyed Property, (a) Hayes II shall have delivered to the Program Agent on the Effective Date a Daily Report giving pro forma effect to such conveyance, and (b) Hayes II shall have paid to the Program Agent, in immediately available funds, an amount equal to the amount, if any, by which the Facility Principal is greater than the Borrowing Base, in each case as determined after giving effect to such reconveyance, which amount shall have been paid in consideration for such transfers and assignments. On or after the Effective Date, the Program Agent agrees to record and file termination statements with respect to financing statements filed against Southfield to reflect the foregoing reconveyance.

2. Representations and Warranties. (a) As of the Effective Date, Originators (as defined prior to the Effective Date), hereby represent and warrant to Hayes I, (b) as of the Effective Date, Originators (as defined as of the Effective Date), hereby represent and warrant to Hayes I, and (c) as of the Effective Date, Hayes I hereby represents and warrants to Hayes II, and Hayes II and HLIOC each represent and warrant to Program Agent (for the benefit of itself and the Lenders) that (i) all of the representations and warranties of such Person in the Transaction Documents are true and correct in all respects on and as of such date as though made to each such Person on and as of such date (other than representations and warranties which expressly speak as of a different date, which representations shall be made only on such date), (ii) each of the recitals accurately describes the transactions described therein in all respects, and (iii) as of such date, no Event of Termination, Incipient Event of Termination, or Servicer Default has occurred and is continuing.

3. Effective Date. The “Effective Date” shall occur upon the satisfaction of the following conditions precedent:

(a) The Program Agent shall have received counterparts hereof executed by each Person for which a signature block is attached hereto.

(b) Each of the representations and warranties contained in this Amendment which speaks as of the Effective Date shall be true and correct in all respects on and as of the Effective Date.

(c) The Program Agent, Southfield and CNAI, in its capacity as administrative agent under the Credit Agreement, shall have executed and delivered signature pages to an agreement removing Southfield as a party to the Intercreditor Agreement, which agreement shall be in form and substance satisfactory to the Program Agent.

(d) The Program Agent shall have received an executed reconveyance agreement among Hayes I, Hayes II, HLIOC and Southfield which shall be in form and substance satisfactory to the Program Agent.

First Amendment

(e) The Sale Transaction shall have been consummated.

4. Reference to and Effect on the Loan Documents.

(a) As applicable, on and after the Effective Date, each reference in the Financing Agreement and Originator Purchase Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import, and each reference in the other Transaction Documents to the Financing Agreement and Originator Purchase Agreement, shall mean and be a reference to the Financing Agreement and Originator Purchase Agreement as modified hereby.

(b) Except as specifically amended or consented to above, all of the terms of the Financing Agreement, Originator Purchase Agreement and all other Transaction Documents remain unchanged and in full force and effect.

(c) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or of Program Agent, Hayes I or Hayes II under any of the Transaction Documents, nor constitute an amendment, other than as set forth herein, or waiver of any provision of any of the Transaction Documents, nor obligate any Lender or Program Agent, Hayes I or Hayes II to agree to similar consents in the future.

(d) This Amendment shall constitute a Transaction Document and any failure to comply with Section 1(g) hereof shall constitute an Event of Termination under the Financing Agreement notwithstanding any grace period set forth in Section 7.01(d) of the Financing Agreement.

5. Costs and Expenses. Hayes II agrees to pay upon demand in accordance with the terms of Section 10.04(a)(viii) of the Financing Agreement all reasonable costs and expenses of the Program Agent in connection with the preparation, reproduction, negotiation, execution and delivery of this Amendment, including, without limitation, the reasonable fees, expenses and disbursements of Sidley Austin LLP, counsel for the Program Agent with respect to any of the foregoing.

6. Miscellaneous. The headings herein are for convenience of reference only and shall not alter or otherwise affect the meaning hereof.

7. Counterparts. This Amendment may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each of which when so executed and delivered by facsimile shall be an original, but all of which shall together constitute one and the same instrument.

8. GOVERNING LAW. THIS AMENDMENT SHALL, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

* * *

First Amendment

IN WITNESS WHEREOF, Hayes I, Hayes II, HLIOC, the Program Agent, the Required Lenders, on behalf of the Lenders, Southfield and the Originators have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the date first above written.


		HAYES FUNDING II, INC.

		By:

				Gary Findling
				Treasurer

		HAYES FUNDING I, LLC

		By:

				Gary Findling
				Treasurer

		HLI OPERATING COMPANY, INC.

		By:

				Gary Findling
				Treasurer

Signature Page to First Amendment


		CITICORP USA, INC.,
		as Program Agent

		By:

				Keith R. Gerding
				Vice President

Signature Page to First Amendment


		CITICORP USA, INC.,
		as Required Lender

		By:

				[Keith R. Gerding]
				[Vice President]

Signature Page to First Amendment


		[_____________],
		as Required Lender

		By:

				[Name]
				[Title]

Signature Page to First Amendment

ORIGINATORS:

HAYES LEMMERZ INTERNATIONAL – SEDALIA, INC.

HAYES LEMMERZ INTERNATIONAL – GEORGIA, INC.

HAYES LEMMERZ INTERNATIONAL IMPORT, INC.

HAYES LEMMERZ INTERNATIONAL – COMMERCIAL HIGHWAY, INC.

HAYES LEMMERZ INTERNATIONAL – WABASH, INC.

HAYES LEMMERZ INTERNATIONAL – LAREDO, INC.

HAYES LEMMERZ INTERNATIONAL – HOMER, INC.

HAYES LEMMERZ INTERNATIONAL – BRISTOL, INC.

HAYES LEMMERZ INTERNATIONAL – MONTAGUE, INC.

HAYES LEMMERZ INTERNATIONAL – TECHNICAL CENTER, INC.

Signature Page to First Amendment

REMOVED ORIGINATOR:


		HAYES LEMMERZ INTERNATIONAL –
		SOUTHFIELD, INC.

		By:

				Gary Findling
				Treasurer

Signature Page to First Amendment

Exhibit A

Amended and Restated Schedule 1 and Exhibit C to Originator Purchase Agreement

Schedule 1

List of Originators

Originators

Hayes Lemmerz International – Sedalia, Inc.

Hayes Lemmerz International – Commercial Highway, Inc.

Hayes Lemmerz International – Georgia, Inc.

Hayes Lemmerz International Import, Inc.

Hayes Lemmerz International – Wabash, Inc.

Hayes Lemmerz International – Laredo, Inc.

Hayes Lemmerz International – Homer, Inc.

Hayes Lemmerz International – Bristol, Inc.

Hayes Lemmerz International – Montague, Inc.

Hayes Lemmerz International – Technical Center, Inc.

First Amendment

EXHIBIT C

Location of Records, Chief Executive Offices and Addresses

Sole

Chief

Principal

Federal

Jurisdiction

Location of

Executive

Place of

Employer

Form of

Originator

Records

Office

Business

ID#

Organization

Hayes Lemmerz

15300 Centennial

3610 W. Main St.

77-0597670

Corporation

Delaware

International –

Dr.

Sedalia, MO

Sedalia, Inc.

Northville, MI

65301

48168

Hayes Lemmerz

15300 Centennial

1215 Palmour

58 ###-###-####

Corporation

Delaware

International –

Dr.

Drive

Georgia, Inc.

Northville, MI

Gainesville, GA

48168

30501

Hayes Lemmerz

15300 Centennial

38 ###-###-####

Corporation

Delaware

International

Dr.

Import,

Northville, MI

Inc.

48168

Hayes Lemmerz

15300 Centennial

3837 W. Mill St.

38 ###-###-####

Corporation

Indiana

International –

Dr.

Ext.

Wabash, Inc.

Northville, MI

Wabash, IN

48168

46992

Hayes Lemmerz

15300 Centennial

P.O. Box 2159

74 ###-###-####

Corporation

Texas

International –

Dr.

Laredo, TX

Laredo, Inc.

Northville, MI

78044

48168

First Amendment

Sole

Chief

Principal

Federal

Jurisdiction

Location of

Executive

Place of

Employer

Form of

Originator

Records

Office

Business

ID#

Organization

Hayes Lemmerz

15300 Centennial

29991 M60 East

38 ###-###-####

Corporation

Delaware

International –

Dr.

Homer, MI 49245

Homer, Inc.

Northville, MI

48168

Hayes Lemmerz

15300 Centennial

51650 County

38 ###-###-####

Corporation

Michigan

International –

Dr.

Rd. 133

Bristol, Inc.

Northville, MI

Bristol, IN 46507

48168

Hayes Lemmerz

15300 Centennial

5353 Wilcox

38-1854771

Corporation

Michigan

International –

Dr.

Ave.

Montague, Inc.

Northville, MI

Montague, MI

48168

49437

Hayes Lemmerz

15300 Centennial

1600 W. 8 Mile

38 ###-###-####

Corporation

Michigan

International –

Dr.

Rd.

Technical Center,

Northville, MI

Ferndale, MI

Inc.

48168

48220

Hayes Lemmerz

15300 Centennial

428 Seiberling St.

77-0597674

Corporation

Delaware

International –

Dr.

Akron, OH

Commercial

Northville, MI

44306-3282

Highway, Inc,

48168

First Amendment