AMENDMENT NO. 3
TO
POST-PETITION LOAN AND SECURITY AGREEMENT
THE CIT GROUP/BUSINESS CREDIT, INC.
AS AGENT AND LENDER
AND
CONGRESS FINANCIAL CORPORATION
GENERAL ELECTRIC CAPITAL CORPORATION
▇▇▇▇▇▇ FINANCIAL, INC.
FINOVA CAPITAL CORPORATION
FOOTHILL CAPITAL CORPORATION
AND
BANKBOSTON, N.A.
AS LENDERS
AND
HARVARD INDUSTRIES, INC.,
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ CORPORATION,
▇▇▇▇▇▇ AUTOMOTIVE, INC.,
▇▇▇▇▇-ALBION CORPORATION,
▇▇▇▇▇▇▇-▇▇▇▇▇▇, INC.,
▇▇▇▇▇▇▇-▇▇▇▇▇▇ GREENEVILLE, INC.,
▇▇▇▇▇▇▇-▇▇▇▇▇▇ POTTSTOWN, INC.,
▇▇▇▇▇▇▇-▇▇▇▇▇▇ TECHNOLOGIES, INC.,
AND
▇▇▇▇▇▇▇-▇▇▇▇▇▇ TOLEDO, INC.
(AS COMPANIES)
DATED AS OF: APRIL 30, 1998
AMENDMENT NO 3. (the "Amendment") dated as of April 30, 1998, by and
among HARVARD INDUSTRIES, INC., a Florida corporation and a debtor and debtor
in possession under chapter 11 of the Bankruptcy Code (herein "Harvard"),
▇▇▇▇▇▇▇-▇▇▇▇▇▇, INC., a Delaware corporation and a debtor and debtor in
possession under chapter 11 of the Bankruptcy Code ("DJ Inc."), THE
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ CORPORATION, a New Hampshire corporation and a debtor and
debtor in possession under chapter 11 of the Bankruptcy Code ("▇▇▇▇▇▇▇▇
▇▇▇▇▇▇"), ▇▇▇▇▇▇ AUTOMOTIVE, INC., a Michigan corporation and a debtor and
debtor in possession under chapter 11 of the Bankruptcy Code ("▇▇▇▇▇▇
Automotive"), ▇▇▇▇▇-ALBION CORPORATION, a Michigan corporation and a debtor and
debtor in possession under chapter 11 of the Bankruptcy Code ("▇▇▇▇▇-Albion"),
▇▇▇▇▇▇▇-▇▇▇▇▇▇ GREENEVILLE, INC., a Delaware corporation and a debtor and
debtor in possession under chapter 11 of the Bankruptcy Code, ▇▇▇▇▇▇▇-▇▇▇▇▇▇
POTTSTOWN, INC., a Delaware corporation and a debtor and debtor in possession
under chapter 11 of the Bankruptcy Code ("DJ Pottstown"), ▇▇▇▇▇▇▇-▇▇▇▇▇▇
TECHNOLOGIES, INC., a Delaware corporation and a debtor and debtor in
possession under chapter 11 of the Bankruptcy Code ("DJ Technologies"),
▇▇▇▇▇▇▇-▇▇▇▇▇▇ TOLEDO, INC., a Delaware corporation and a debtor and debtor in
possession under chapter 11 of the Bankruptcy Code ("▇▇ ▇▇▇▇▇▇"), THE CIT
GROUP/BUSINESS CREDIT, INC. ("CITBC"), as agent for the lenders whose names are
set forth on the signature pages hereto (each a "Lender" and collectively the
"Lenders" and CITBC as such agent being the "Agent") and the Lenders. Harvard
and each of the entities subsequently identified above (other than the Agent
and the Lenders) are referred to herein individually as a "Company" and
collectively as the "Companies").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Companies, the Lenders and CITBC, as Agent, are parties
to that certain Post-Petition Loan and Security Agreement, dated as of May 8,
1997 (as amended hereby and by Amendment No. 1, Waiver and Consent dated
December 29, 1997, Amendment No. 2 and Consent dated as of January 16, 1998 and
as further amended, extended, supplemented or otherwise modified from time to
time, the "DIP Financing Agreement" and capitalized terms defined in the DIP
Financing Agreement and not otherwise defined herein having the meanings
provided therein), providing for, inter alia, Term Loans and Revolving Credit
Loans to the Companies in the aggregate principal amounts of $65,000,000 for
the Term Loans and up to $110,000,000 for the Revolving Credit Loans; and
WHEREAS, the Companies have requested the Agent and the Lenders to
enter into this Amendment to extent the date for compliance set forth in
Section
11.1(u) of the DIP Financing Agreement to May 31, 1998, upon the terms and
subject to the conditions contained in this Amendment; and
WHEREAS, the Lenders have agreed with the Companies to enter into this
Amendment upon the terms and subject to the conditions contained herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendments to the DIP Financing Agreement. Upon the
satisfaction of the condition in Section 3 of this Amendment relating to the
effectiveness of this Section 1, Section 11.1(u) of the DIP Financing
Agreements is hereby amended by replacing the reference therein to "April 30,
1998" with "May 31, 1998").
SECTION 2. Representations and Warranties. Each of the Companies
hereby represents and warrants as to itself and its Subsidiaries that (a) the
execution, delivery and performance of this Amendment have been duly authorized
by all necessary corporate action on the part of such Company and this
Amendment constitutes a legal, valid and binding obligation of such Company,
enforceable against it in accordance with its terms, (b) except as disclosed in
writing to the Agent and the lenders, no event has occurred and is continuing
on the date hereof that constitutes a Default or an Event of Default or would
constitute a Default of an Event of Default after giving effect to this
Amendment, and (c) the representations and warranties of such Company contained
in Section 6 of the DIP Financing Agreement are true and correct both before
and after giving effect to this Amendment, except to the extent such
representations and warranties are stated to be true only as of a particular
date, in which case such representations and warranties were correct on and as
of such date.
SECTION 3. Conditions to Effectiveness. The amendment in Section 1 of
this Amendment shall become effective on the date when counterparts hereof
shall have been executed by all of the Lenders, the Agent and the Companies.
SECTION 4. Effect on the DIP Financing Agreement. Except as amended
hereby, the DIP Financing Agreement and the other Post-Petition Loan Documents
shall remain in full force and effect. Nothing in this Amendment shall be
deemed to (i) constitute a waiver of compliance by any of the Companies of any
term, provision or condition of the DIP Financing Agreement or any other
instrument or agreement referred to therein or under the Post-Petition Loan
Documents or (ii) prejudice any right or remedy that Agent or any Lender may
now have or may have
2
in the future under or in connection with the DIP Financing Agreement or any
other Post-Petition Loan Document.
SECTION 5. 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 and delivered shall be deemed to be an original and
all of which taken together constitute one and the same agreement.
SECTION 6. Governing Law. The validity, interpretation and enforcement
of this Amendment shall be governed by the law of the State of New York.
SECTION 7. Headings. Section headings in this Amendment are included
herein for the convenience of reference only and shall not constitute part of
this Amendment for any other purpose.
SECTION 8. References. References herein and in the Post-Petition Loan
Documents and the Final Order to the "DIP Financing Agreement", the
"Post-Petition Loan and Security Agreement", the "Postpetition Loan Agreement",
"this Agreement", "hereunder", "hereof", or words of like import referring to
the DIP Financing Agreement, shall mean and be a reference to the DIP Financing
Agreement as amended hereby.
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their proper and duly authorized officers as of the
date set forth above. This Amendment shall take effect as of the date set forth
above after being accepted below by an officer of the Agent and the Lenders
after which, the Agent shall forward to Harvard a duly executed original for
its files.
HARVARD INDUSTRIES, INC.
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ CORPORATION
▇▇▇▇▇▇ AUTOMOTIVE, INC.
▇▇▇▇▇-ALBION CORPORATION
▇▇▇▇▇▇▇-▇▇▇▇▇▇, INC.
▇▇▇▇▇▇▇-▇▇▇▇▇▇ GREENEVILLE, INC.
▇▇▇▇▇▇▇-▇▇▇▇▇▇ POTTSTOWN, INC.
▇▇▇▇▇▇▇-▇▇▇▇▇▇ TECHNOLOGIES, INC.
▇▇▇▇▇▇▇-▇▇▇▇▇▇ TOLEDO, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Title: Chief Financial Officer
THE CIT GROUP/BUSINESS CREDIT, INC.,
AS AGENT AND LENDER
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Title: Vice President
CONGRESS FINANCIAL CORPORATION, AS
LENDER
By:
------------------------------
Title: First Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION, AS LENDER
By:
------------------------------
Title: Duly Authorized Signatory
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their proper and duly authorized officers as of the
date set forth above. This Amendment shall take effect as of the date set forth
above after being accepted below by an officer of the Agent and the Lenders
after which, the Agent shall forward to Harvard a duly executed original for
its files.
HARVARD INDUSTRIES, INC.
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ CORPORATION
▇▇▇▇▇▇ AUTOMOTIVE, INC.
▇▇▇▇▇-ALBION CORPORATION
▇▇▇▇▇▇▇-▇▇▇▇▇▇, INC.
▇▇▇▇▇▇▇-▇▇▇▇▇▇ GREENEVILLE, INC.
▇▇▇▇▇▇▇-▇▇▇▇▇▇ POTTSTOWN, INC.
▇▇▇▇▇▇▇-▇▇▇▇▇▇ TECHNOLOGIES, INC.
▇▇▇▇▇▇▇-▇▇▇▇▇▇ TOLEDO, INC.
By:
------------------------------
Title:
THE CIT GROUP/BUSINESS CREDIT, INC.,
AS AGENT AND LENDER
By:
------------------------------
Title: Vice President
CONGRESS FINANCIAL CORPORATION, AS
LENDER
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title: First Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION, AS LENDER
By:
------------------------------
Title: Duly Authorized Signatory
▇▇▇▇▇▇ FINANCIAL, INC., AS LENDER
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Title: Vice President
FINOVA CAPITAL CORPORATION, AS
LENDER
By:
------------------------------
Title: Assistant Vice President
FOOTHILL CAPITAL CORPORATION, AS
LENDER
By:
------------------------------
Title: Vice President
BANKBOSTON, N.A. AS LENDER
By:
------------------------------
Title: Vice President
▇▇▇▇▇▇ FINANCIAL, INC., AS LENDER
By:
------------------------------
Title: Senior Vice President
FINOVA CAPITAL CORPORATION, AS
LENDER
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Title: Assistant Vice President
FOOTHILL CAPITAL CORPORATION, AS
LENDER
By:
------------------------------
Title: Vice President
BANKBOSTON, N.A. AS LENDER
By:
------------------------------
Title: Vice President
▇▇▇▇▇▇ FINANCIAL, INC., AS LENDER
By:
------------------------------
Title: Senior Vice President
FINOVA CAPITAL CORPORATION, AS
LENDER
By:
------------------------------
Title: Assistant Vice President
FOOTHILL CAPITAL CORPORATION, AS
LENDER
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Title: Vice President
BANKBOSTON, N.A. AS LENDER
By:
------------------------------
Title: Vice President
▇▇▇▇▇▇ FINANCIAL, INC., AS LENDER
By:
------------------------------
Title: Vice President
FINOVA CAPITAL CORPORATION, AS
LENDER
By:
------------------------------
Title: Assistant Vice President
FOOTHILL CAPITAL CORPORATION, AS
LENDER
By:
------------------------------
Title: Vice President
BANKBOSTON, N.A. AS LENDER
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Title: Vice President