Exhibit 10.66
WAIVER AND FIFTH AMENDMENT TO CREDIT AGREEMENT
This WAIVER AND FIFTH AMENDMENT TO CREDIT AGREEMENT ("Amendment") is
dated as of March 23, 2001, and is entered into by and among ▇▇▇▇ INTERNATIONAL
HOLDINGS, INC. ("Holdings"), ▇▇▇▇ INDUSTRIES, INCORPORATED, DEFLECTA-SHIELD
CORPORATION, BELMOR AUTOTRON CORP., DFM CORP., AUTO VENTSHADE COMPANY and
SMITTYBILT, INC. (each a "Borrower" and, collectively, the "Borrowers"), ▇▇▇▇
ACQUISITION CORP., BAC ACQUISITION CO., TRAILMASTER PRODUCTS, INC., and DELTA
III, INC. (together with Borrowers and Holdings, each a "Loan Party", and
collectively, the "Loan Parties"), ▇▇▇▇▇▇ FINANCIAL, INC., individually as a
Lender and in its capacity as Agent ("Agent"), and the other Lenders which are
signatories hereto.
WHEREAS, Agent, Lenders and the Loan Parties are parties to a certain
Credit Agreement dated February 27, 1998 (as such agreement has from time to
time been amended, supplemented or otherwise modified, the "Agreement"); and
WHEREAS, Events of Default are in existence under the Agreement as a
result of Borrowers' breach of the financial covenants set forth in Sections
4.3, 4.4, 4.5 and 4.6 of the Agreement for the twelve (12) month period ending
December 31, 2000 (the "Existing Events of Default"), and Borrowers have
requested that Agent and Lenders waive the Existing Events of Default; and
WHEREAS, concurrently with the execution of this Agreement, Agent,
Holdings, the Borrowers and Harvest Partners III, L.P. ("Harvest Partners")
shall enter into a Second Amendment to Capital Call Agreement (the "Second
Amendment") pursuant to which Harvest Partners agrees to accelerate the
investment under the existing Capital Call Agreement of an additional $3,437,500
in the equity of Holdings and to make additional investments therein on the
terms set forth in the Second Amendment; and
WHEREAS, the parties desire to amend the Agreement as hereinafter set
forth.
NOW THEREFORE, in consideration of the waiver of the Existing Events
of Default, the execution and delivery of the Second Amendment, the mutual
covenants and agreements set forth in the Agreement and this Amendment, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used in this Amendment, unless
otherwise defined herein, shall have the meanings ascribed to such terms in the
Agreement.
2. Amendments. Subject to the conditions set forth below, the
Agreement is amended as follows:
a. Section 1.1(B) of the Agreement is hereby amended by deleting the
dollar figure "$30,000,000" where it appears in the seventh line thereof as the
maximum amount of the Revolving Loan Commitment, and inserting in substitution
therefor the dollar figure "$25,000,000".
b. Subsection 1.2(A) of the Agreement is hereby amended by adding the
following new language after the Base Rate Margin Pricing Table and Libor Margin
Pricing Table where they appear therein:
"For purposes of determining Base Rate Margin and Libor
Margin (i) Total Indebtedness to EBITDA shall be calculated as of the
end of each Fiscal Quarter with EBITDA measured for the most recently
ended four Fiscal Quarters ending as of the last day of the Fiscal
Quarter for which such calculation is made, and (ii) for any
calculation of four Fiscal Quarter EBITDA during Fiscal Year 2001
which includes a portion of the Fiscal Year 2000 in such measurement
period, the amount of any reduction in Fiscal Year 2000 EBITDA as a
result of any Audit Adjustments (hereinafter defined) shall be
applied to the calculation of EBITDA for any Fiscal Quarter in Fiscal
Year 2000 included in such trailing twelve-month period, pro-rata
based upon the proportion of the Loan Parties' total consolidated
gross revenues during such Fiscal Quarter (as modified, if
applicable, to give effect to any Audit Adjustments) to their total
consolidated gross revenues during Fiscal Year 2000."
"Audit Adjustments" for purposes of this Section 1.2(A)
shall mean the difference between EBITDA for Fiscal Year 2000 based
upon the audited financial statements of the Loan Parties to be
provided to Agent pursuant to Section 4.7(C) of this Agreement and
Fiscal Year 2000 EBITDA in the amount of $19,184,000, as set forth on
the Compliance Certificate delivered to Agent on February 8, 2001."
c. Section 4.1 of the Agreement is hereby amended in its entirety to
read as follows:
"4.1 Capital Expenditure Limits. The aggregate amount of
all Capital Expenditures of Holdings and Borrowers and their
respective Subsidiaries will not exceed the following amounts ("Capex
Limit") during the following periods:
Maximum Amount
Period of Capital Expenditures
------ -------------------------------
From January 1, 2001
through December 31, 2001 $4,100,000
Each Fiscal Year thereafter $6,000,000
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Notwithstanding the foregoing, in the event the Loan Parties and
their respective Subsidiaries do not expend the entire Capex Limit
permitted in Fiscal Year 2001 or any subsequent Fiscal Year, the Loan
Parties and their respective Subsidiaries may carry forward to the
immediately succeeding Fiscal Year the unutilized portion of the
Capex Limit, provided that the amount so carried forward shall not
exceed 50% of the Capex Limit for such immediately succeeding Fiscal
Year. All Capital Expenditures made by Loan Parties and their
respective Subsidiaries shall first be applied to reduce the
applicable Capex Limit for such Fiscal Year and then to reduce the
amount, if any, carried forward from the previous Fiscal Year.
"Capital Expenditures" will be calculated as illustrated
on Exhibit 4.7(D)."
d. Subsection 4.3 of the Agreement is hereby amended in its entirety
to read as follows:
"4.3 EBITDA. Holdings and Borrowers shall not permit EBITDA
for the periods set forth below to be less than the amounts set forth
below for such periods:
Period Amount
------ ------
For the Four Fiscal Quarters ending December 31, 2000 $18,000,000
For the Three Months ending March 31, 2001 $ 3,400,000
For the Four Months ending April 30, 2001 $ 5,100,000
For the Five Months ending May 31, 2001 $ 6,700,000
For the Six Months ending June 30, 2001 $ 8,700,000
For the Seven Months ending July 31, 2001 $10,200,000
For the Eight Months ending August 31, 2001 $11,900,000
For the Nine Months ending September 30, 2001 $14,000,000
For the Ten Months ending October 31, 2001 $15,300,000
For the Eleven Months ending November 30, 2001 $16,200,000
For the Twelve Months ending December 31, 2001 $18,200,000
For the Four Fiscal Quarters ending March 31, 2002 and
each Four Fiscal Quarter period thereafter $35,000,000
"EBITDA" will be calculated as illustrated on Exhibit
4.7(D)."
e. Subsection 4.4 of the Agreement is hereby amended in its entirety
to read as follows:
"4.4 Fixed Charge Coverage. Holdings and Borrowers shall
not permit Fixed Charge Coverage for the periods set forth below to
be less than the ratios set forth below:
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Period Minimum Ratio
------ -------------
For the Three Months ending March 31, 2001 .40:1.00
For the Four Months ending April 30, 2001 .50:1.00
For the Five Months ending May 31, 2001 .60:1.00
For the Six Months ending June 30, 2001 .60:1.00
For the Seven Months ending July 31, 2001 .65:1.00
For the Eight Months ending August 31, 2001 .70:1.00
For the Nine Months ending September 30, 2001 .70:1.00
For the Ten Months ending October 31, 2001 .70:1.00
For the Eleven Months ending November 30, 2001 .70:1.00
For the Twelve Months ending December 31, 2001 .70:1.00
For the Four Fiscal Quarters ending March 31, 2002 and
each Four Fiscal Quarter period thereafter 1.10:1.00
"Fixed Charge Coverage" will be calculated as illustrated
on Exhibit 4.7(D)."
f. Subsection 4.5 of the Agreement is hereby amended in its entirety
to read as follows:
"4.5 Total Interest Coverage. Holdings and Borrowers shall
not permit Total Interest Coverage for the periods set forth below to
be less than the ratios set forth below for such periods:
Period Minimum Ratio
------ -------------
For the Three Months ending March 31, 2001 .65:1.00
For the Four Months ending April 30, 2001 .75:1.00
For the Five Months ending May 31, 2001 .90:1.00
For the Six Months ending June 30, 2001 1.00:1.00
For the Seven Months ending July 31, 2001 1.05:1.00
For the Eight Months ending August 31, 2001 1.10:1.00
For the Nine Months ending September 30, 2001 1.15:1.00
For the Ten Months ending October 31, 2001 1.15:1.00
For the Eleven Months ending November 30, 2001 1.15:1.00
For the Twelve Months ending December 31, 2001 1.20:1.00
For the Four Fiscal Quarters ending March 31, 2002 and
each Four Fiscal Quarter period thereafter 3.00:1.00
"Total Interest Coverage" will be calculated as
illustrated on Exhibit 4.7(D)."
g. Subsection 4.6 of the Agreement is hereby amended in its entirety
to read as follows:
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"4.6 Total Indebtedness to EBITDA Ratio. Holdings and
Borrowers shall not permit the ratio of Total Indebtedness
(calculated as of the last day of any fiscal period ending during the
periods set forth below) to EBITDA for the periods set forth below to
be greater than the ratios set forth below:
Period Maximum Ratio
------ -------------
For the Three Months ending March 31, 2001 6.75:1.00
For the Four Months ending April 30, 2001 6.50:1.00
For the Five Months ending May 31, 2001 6.00:1.00
For the Six Months ending June 30, 2001 5.50:1.00
For the Seven Months ending July 31, 2001 5.50:1.00
For the Eight Months ending August 31, 2001 5.25:1.00
For the Nine Months ending September 30, 2001 5.00:1.00
For the Ten Months ending October 31, 2001 5.00:1.00
For the Eleven Months ending November 30, 2001 5.00:1.00
For the Twelve Months ending December 31, 2001 4.75:1.00
For the Four Fiscal Quarters ending March 31, 2002 and
each Four Fiscal Quarter period thereafter 2.50:1.00
"Total Indebtedness" and "EBITDA" will be calculated as
illustrated on Exhibit 4.7(D), provided, that for purposes of
calculating the foregoing Total Indebtedness to EBITDA Ratio for
fiscal periods prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇▇▇▇▇ for each respective
period shall be annualized on a straight line basis, based on actual
results for Fiscal Year 2001 through the last day of such period."
h. Exhibit 4.7(D) to the Agreement is hereby deleted in its entirety
and the form of Exhibit 4.7(D) attached hereto is inserted in substitution
therefor:
i. Section 4.7(D) of the Agreement is hereby amended in its entirety
to read as follows:
"(D) Compliance Certificate. Together with each delivery of
financial statements of Holdings, Borrowers and their respective
Subsidiaries pursuant to subsections 4.7(A) and 4.7(B) above,
Borrowers will deliver a fully and properly completed Compliance
Certificate (in substantially the same form as Exhibit 4.7(D)) signed
by Borrower Representative."
j. Section 4.7 of the Agreement is hereby amended to add the
following new subsection "(U)" thereto:
"(U) Cash Flows. On or before April 20, 2001, Borrowers
shall deliver to Agent, a consolidated cash flow forecast for the
thirteen-week period commencing on such date, in form acceptable to
Agent, which report shall be updated on a monthly basis, on the last
Business Day of each month thereafter, for the succeeding thirteen
week period."
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k. Section 4 of the Agreement is hereby amended by adding the
following new Subsection 4.9 thereto:
"4.9 Smittybilt Covenants. Borrowers and Holdings shall
not permit Smittybilt EBITDA for the periods set forth below to be
less than the amounts set forth below for such periods:
Period Amount
------ ------
For the Three Months ending March 31, 2001 ($1,200,000)
For the Four Months ending April 30, 2001 ($1,100,000)
For the Five Months ending May 31, 2001 ($950,000)
For the Six Months ending June 30, 2001 ($750,000)
For the Seven Months ending July 31, 2001 ($600,000)
For the Eight Months ending August 31, 2001 ($250,000)
For the Nine Months ending September 30, 2001 $100,000
For the Ten Months ending October 31, 2001 $400,000
For the Eleven Months ending November 30, 2001 $700,000
For the Twelve Months ending December 31, 2001 $1,000,000
"Smittybilt EBITDA" will be calculated as illustrated on
Exhibit 4.7(D)."
The breach by Holdings and Borrowers of this Section 4.9 shall, in
the absence of the occurrence of any other Event of Default, not
constitute an Event of Default hereunder, provided that Holdings and
Borrowers shall:
(i) within not more than fifteen (15) Business Days
following the occurrence of a breach of the
covenants set forth in this Section 4.9,
retain, at Loan Parties' expense, under a
written retention agreement, in form and
substance acceptable to Agent, an independent
financial advisor acceptable to Agent,
experienced in reviewing and recommending
strategic alternatives to businesses similar in
nature to the Loan Parties, which retention
agreement shall include the engagement of such
advisor to develop strategies for the
disposition of all or a portion of Smittybilt,
Inc.'s assets;
(ii) Upon receipt from the financial advisor, but in
no event more than fifteen (15) Business Days
subsequent to the retention of such financial
advisor, provide Agent with a written report of
such financial advisor setting forth the
strategic alternatives available to the Loan
Parties with respect to Smittybilt, Inc. and
the recommendations of such financial advisor,
together with offering materials relating to
any proposed sale included in such
recommendations;
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(iii) within five (5) Business Days of receipt of
such report, advise Agent in writing as to the
Loan Parties' proposed actions based upon the
recommendations of such financial advisor and a
timetable for implementing same; and
(iv) subject to Agent's written consent, pursue in a
timely manner and by appropriate means the
proposed actions provided to Agent under (iii)
above."
l. Notwithstanding anything contained in Section 4 of the Waiver and
Fourth Amendment to Credit Agreement dated as of November 14, 2000 among
Holdings, Borrowers, the other Loan Parties, Agent and Lenders (i) Holdings and
the Borrowers shall not be permitted to make Restricted Junior Payments to
redeem shares of equity securities issued to Harvest Partners or its designees
in exchange for the equity contributions made pursuant to the Capital Call
Agreement, and (ii) the Loan Parties, Agent and Lenders consent to the
application of any equity contributions made pursuant to the Capital Call
Agreement in the manner provided in the Capital Call Agreement.
m. The Agreement is hereby amended to add the following new Section
6.5 thereto:
"6.5 Priority Default. In addition to all other rights and
remedies available to Agent and Lenders under this Agreement, the
other Loan Documents or applicable law, upon the occurrence of a
Priority Default, Holdings and Borrowers shall:
(a) within not more than fifteen (15) Business Days of receipt
of written notice from Agent, retain, at Loan Parties'
expense, by written retention agreement, in form and
substance acceptable to Agent, an independent financial
advisor acceptable to Agent, experienced in reviewing and
recommending strategic alternatives available to
businesses similar in nature to the Loan Parties, which
retention agreement shall include, without limitation, the
engagement of such advisor to develop strategies for the
disposition of all or a portion of the Loan Parties'
assets;
(b) upon receipt from the financial advisor, but in no event
more than fifteen (15) Business Days subsequent to the
retention of such financial advisor, provide Agent with a
written report of such financial advisor setting forth the
strategic alternatives available to the Loan Parties and
the recommendations of such financial advisor, together
with offering materials relating to any proposed sale
included in such recommendations;
(c) within five (5) Business Days of receipt of such report,
advise Agent in writing as to the Loan Parties' proposed
actions based upon the recommendations of such financial
advisor and a timetable for implementing same; and
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(d) subject to Agent's written Consent, pursue in a timely
manner and by appropriate means the proposed actions
provided to Agent under (c) above."
n. Schedules 2.8, 5.12(A), 5.12(B) and 5.21 to the Agreement are
hereby deleted in their entirety and the forms of Schedules 2.8, 5.12(A),
5.12(B) and 5.21 attached hereto are inserted in substitution therefor.
o. Schedule 3.2(A)(10) to the Agreement is hereby amended to delete
the reference therein to the Loan Agreement dated September 1, 1994, between
▇▇▇▇ Industries Incorporated and City of Anoka and the Mortgage from ▇▇▇▇
Industries Incorporated to First Trust National Association which appear as the
first item listed and described on such Schedule 3.2(A)(10).
p. The Loan Parties hereby consent to expand the scope of the
engagement of ▇▇▇▇▇▇▇ Consulting, Inc., as set forth in that certain letter
dated January 22, 2001 from the Loan Parties to ▇▇▇▇▇▇▇ Consulting, Inc. to
include on an ongoing basis quarterly assessments by ▇▇▇▇▇▇▇ Consulting, Inc. of
the financial performance of Smittybilt, Inc. Such additional duties of ▇▇▇▇▇▇▇
Consulting, Inc. shall be on the same terms set forth in such letter, and the
Loan Parties affirm their agreement to pay all costs and expenses of ▇▇▇▇▇▇▇
Consulting, Inc. in connection therewith as set forth in the letter dated
January 22, 2001. Such quarterly assessments shall commence with the Fiscal
Quarter ending March 31, 2001 and shall continue for each Fiscal Quarter
thereafter during Fiscal Year 2001.
q. The Loan Parties hereby agree that notwithstanding anything
contained in Section 2.3 of the Agreement to the contrary (i) the Agent or its
representatives may, upon two (2) days notice to Borrowers, during normal
business hours, at the Loan Parties' expense, conduct a field examination of
Smittybilt, Inc., and (ii) the Loan Parties will participate and cause their key
management personnel to participate in conference calls with Agent and Lenders,
at least once each calendar month, to address the Loan Parties' financial
condition and performance and such other matters reasonably requested by Agent
and Lenders, which shall be held at such time and as may be reasonably requested
by Agent and Lenders.
r. Section 10.1 of the Agreement is hereby amended by inserting the
following defined terms in their proper alphabetical order:
"Audit Adjustment" shall have the meaning assigned to that
term in Section 1.2(A) of this Agreement.
""Measurement Period" has the meaning assigned to that
term in the calculation of covenants 4.3 and 4.9 in Exhibit 4.7(D).
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"Priority Default" means an Event of Default as a result
of the breach of any of the following Subsections of the Agreement:
6.1(A), 6.1(C) (to the extent that such default is due to violation
of any of Sections 4.3, 4.4, 4.5, 4.6, 4.7(A), 4.7(B), 4.7(C),
4.7(D), 4.7(E), 4.7(F) or 4.7 (L) of this Agreement), or 6.1(T).
""Smittybilt EBITDA" has the meaning assigned to that term
in the calculation of covenant 4.9 in Exhibit 4.7(D).
"Smittybilt Net Income" has the meaning assigned to that
term in the calculation of covenant 4.9 in Exhibit 4.7(D).
s. The definition of Senior Indebtedness in Section 10.1 of the
Agreement is amended in its entirety to read as follows:
"Senior Indebtedness" means all Indebtedness of the Loan
Parties other than (x) Indebtedness under the Senior Subordinated
Notes and (y) Indebtedness related to leases (other than capital
leases and other leases treated as a loan or financing for creditor's
rights purposes).
3. "Waiver. Agent and Lenders hereby waive the Existing Events of
Default. This is a limited waiver (limited solely to the Existing Events of
Default) and shall not be deemed to constitute a waiver of any other Event of
Default or any future breach of the Agreement or any of the other Loan
Documents.
4. Conditions. The effectiveness of this Amendment is subject to the
satisfaction of each of the following conditions precedent (unless specifically
waived in writing by Agent and Lenders):
a. The Loan Parties and Lenders shall have executed and delivered
this Amendment, and all such other documents and instruments as Agent may
require shall have been executed and/or delivered to Agent.
b. All proceedings taken in connection with the transactions
contemplated by this Amendment and all documents, instruments and other legal
matters incident thereto shall be satisfactory to Agent and its legal counsel.
c. No Default or Event of Default other than the Existing Events of
Default shall have occurred and be continuing.
d. Borrowers shall have provided Agent and Lenders with evidence
satisfactory to Agent and Lenders that Massachusetts Mutual Life Insurance
Company, MassMutual Corporate Investors, MassMutual Participation Investors,
MassMutual Corporate Value Partners Limited, National City Venture Corporation
and Great Lakes Capital Investment I, L.L.C. shall have (i) previously waived in
writing any and all existing defaults under the Securities Purchase Agreement
dated December 23, 1998, in a manner satisfactory to Agent, (ii) reset the
covenants contained therein to levels satisfactory to Agent and Lenders, and
(iii) made such other amendments thereto as shall be requested by Agent and
Lenders.
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e. The Second Amendment in the form attached to this Amendment as
Exhibit A shall have been executed and delivered by each of the parties thereto.
Any equity securities proposed to be issued to Harvest Partners in exchange for
the equity contributions made pursuant to the Second Amendment shall not be
subject to redemption and shall otherwise contain terms and conditions and be in
form and substance satisfactory in all respects to Agent.
f. Agent shall have received an amendment fee for the benefit of the
Lenders in an amount equal to $232,539.
g. Holdings and LII shall have executed a Mortgage in favor of Agent
for the benefit of Lenders on the Anoka Property creating a first priority
mortgage Lien on the Anoka Property in favor of Agent.
h. Holdings and LII shall have provided Agent with a lender's policy
of title insurance issued by Chicago Title Insurance Company in the amount of
$13,500,000, with all premiums paid in full, insuring the Mortgage on the Anoka
property as a first Lien in favor of Agent subject only to such exceptions as
are reasonably acceptable to Agent and containing endorsements reasonably
requested by Agent.
i. The Loan Parties shall have executed and/or delivered to Agent:
(1) a copy, duly certified by the secretary or an
assistant secretary of each Loan Party of (A)
resolutions of such Loan Party's Board of
Directors authorizing or ratifying the
execution and delivery of this Amendment and
the transactions contemplated hereunder, (B)
all documents evidencing other necessary
corporate action, if any, and (C) all required
approvals or consents, if any, with respect to
this Amendment shall have been delivered to
Agent; and
(2) a certificate of the secretary or an assistant
secretary of each Loan Party certifying (A) the
names of such Loan Party's officers authorized
to sign this Amendment and all other documents
or certificates to be delivered hereunder,
together with the true signatures of such
officers, and (B) that its organizational and
governance documents have not been amended,
rescinded, supplemented, modified or otherwise
changed since the Closing Date, except as may
be expressly permitted under the Agreement.
5. Representations and Warranties. To induce Agent and Lenders to
enter into this Amendment, the Loan Parties represent and warrant to Agent and
Lenders that (a) the execution, delivery and performance of this Amendment has
been duly authorized by all requisite corporate action on the part of each Loan
Party and that this Amendment has been duly executed and delivered by such Loan
Party, (b) each of the representations and warranties set forth in Section 5 of
the Agreement (other than those which, by their terms, specifically are made as
of a specific
10
date prior to the date hereof) are true and correct in all material respects as
of the date hereof and (c) no Default or Event of Default, other than the
Existing Events of Default, has occurred and is continuing.
6. Severability. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
7. References. Any reference to the Agreement contained in any
document, instrument or agreement executed in connection with the Agreement
shall be deemed to be a reference to the Agreement as modified by this
Amendment.
8. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall constitute an original, but all of which taken
together shall be one and the same instrument. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier shall be as
effective as delivery of a manually executed counterpart of this Agreement.
9. Reaffirmation. The Borrowers and other Loan Parties, as
guarantors, debtors, grantors, pledgors, assignors, or in other similar
capacities in which such parties guarantee the Obligations, grant liens or
security interests in their properties or otherwise act as accommodation
parties, as the case may be, in any case under the Loan Documents, hereby each
ratifies and reaffirms all of its payment and performance obligations,
contingent or otherwise, affirmative or negative, under each of such existing
Loan Documents to which it is a party and, to the extent such party granted
liens on or security interests in any of its properties pursuant to any such
existing Loan Documents as security for the Borrowers' obligations under or with
respect to the Agreement, each hereby ratifies and reaffirms such grant of liens
and security interests and confirms and agrees that such liens and security
interests hereafter secure all of the Obligations, in each case as if each
reference in such existing Loan Documents to the obligations secured thereby are
construed to hereafter mean and refer to such Obligations under the Agreement
and other Loan Documents as hereby amended. Each of the foregoing hereby
acknowledges that each of the Loan Documents remains in full force and effect
and is hereby ratified and confirmed. The execution of this Amendment shall not
operate as a novation, waiver of any right, power or remedy of Agent or any
Lender nor constitute a waiver of any provision of any of the Loan Documents,
except as expressly set forth herein and shall be limited to the particular
instance expressly set forth. The Loan Parties confirm and agree that the
Agreement and the other Loan Documents and each and every covenant, condition,
obligation, representation (except those representations which relate only to a
specific date, which are confirmed as of such date only), warranty and provision
set forth therein are, and shall continue to be, in full force and effect and
are hereby confirmed, reaffirmed and ratified in all respects.
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10. Fees and Expenses. The Borrowers agree to pay to Agent and the
Lenders upon demand all fees and expenses, including attorneys' and legal
assistants' fees (which attorneys and paralegals may be employees of Agent)
incurred by Agent or Lenders in connection with the preparation, negotiation and
execution of this Amendment and all documents related thereto and any documents
required to be furnished herewith.
[Signatures appear on the following pages.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed under seal and delivered by their respective duly authorized
officers on the date first written above.
▇▇▇▇ INTERNATIONAL HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ Vollmershausen
--------------------------------------------
Name: ▇▇▇▇▇▇ Vollmershausen
-------------------------------------------
Title: CEO and President
------------------------------------------
▇▇▇▇ INDUSTRIES, INCORPORATED
By: /s/ ▇▇▇▇▇▇ Vollmershausen
--------------------------------------------
Name: ▇▇▇▇▇▇ Vollmershausen
-------------------------------------------
Title: CEO and President
------------------------------------------
DEFLECTA-SHIELD CORPORATION
By: /s/ ▇▇▇▇▇▇ Vollmershausen
--------------------------------------------
Name: ▇▇▇▇▇▇ Vollmershausen
-------------------------------------------
Title: CEO and President
------------------------------------------
BELMOR AUTOTRON CORP.
By: /s/ ▇▇▇▇▇▇ Vollmershausen
--------------------------------------------
Name: ▇▇▇▇▇▇ Vollmershausen
-------------------------------------------
Title: Chief Executive Officer
------------------------------------------
DFM CORP.
By: /s/ ▇▇▇▇▇▇ Vollmershausen
--------------------------------------------
Name: ▇▇▇▇▇▇ Vollmershausen
-------------------------------------------
Title: CEO and President
------------------------------------------
AUTO VENTSHADE COMPANY
By: /s/ ▇▇▇▇▇▇ Vollmershausen
--------------------------------------------
Name: ▇▇▇▇▇▇ Vollmershausen
-------------------------------------------
Title: CEO and President
------------------------------------------
SMITTYBILT, INC.
By: /s/ ▇▇▇▇▇▇ Vollmershausen
--------------------------------------------
Name: ▇▇▇▇▇▇ Vollmershausen
-------------------------------------------
Title: CEO and President
------------------------------------------
▇▇▇▇ ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ Vollmershausen
--------------------------------------------
Name: ▇▇▇▇▇▇ Vollmershausen
-------------------------------------------
Title: President
------------------------------------------
BAC ACQUISITION CO.
By: /s/ ▇▇▇▇▇▇ Vollmershausen
--------------------------------------------
Name: ▇▇▇▇▇▇ Vollmershausen
-------------------------------------------
Title: President
------------------------------------------
TRAILMASTER PRODUCTS, INC.
By: /s/ ▇▇▇▇▇▇ Vollmershausen
--------------------------------------------
Name: ▇▇▇▇▇▇ Vollmershausen
-------------------------------------------
Title: Chief Executive Officer
------------------------------------------
DELTA III, INC.
By: /s/ ▇▇▇▇▇▇ Vollmershausen
--------------------------------------------
Name: ▇▇▇▇▇▇ Vollmershausen
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Title: President
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▇▇▇▇▇▇ FINANCIAL, INC.,
in its capacity as Agent and a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Vice President
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DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES,
as a Lender
By:_______________________________
Name:____________________________
Title:_____________________________
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By:______________________________
Name:____________________________
Title:_____________________________
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, as a Lender
By:______________________________
Name:____________________________
Title:_____________________________
IBJ WHITEHALL BANK & TRUST COMPANY,
as a Lender
By:______________________________
Name:____________________________
Title:_____________________________
KEY CORPORATE CAPITAL, INC.,
as a Lender
By:______________________________
Name:____________________________
Title:_____________________________
FIRST UNION NATIONAL BANK, as a Lender
By:______________________________
Name:____________________________
Title:_____________________________
FIRST SOURCE FINANCIAL LLP, as a Lender
By: First Source Financial, Inc., its
Agent/Manager
By:______________________________
Name:____________________________
Title:_____________________________
SENIOR DEBT PORTFOLIO, as a Lender
By: Boston Management and Research, Inc., as
Investment Advisor
By:______________________________
Name:____________________________
Title:_____________________________
ARCHIMEDES FUNDING LLC, as a Lender
By: ING Capital Advisors, Inc., as
Collateral Manager
By:______________________________
Name:____________________________
Title:_____________________________