EXHIBIT 10.79
FOURTH AMENDMENT TO
AMENDED AND RESTATED
CREDIT AGREEMENT,
THIRD AMENDMENT TO REVOLVING NOTE
AND
MODIFICATION OF THIRD AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
▇▇▇▇▇▇ CORPORATION ("▇▇▇▇▇▇"), a Delaware corporation, its wholly-owned
subsidiary ▇▇▇▇▇▇ MANUFACTURING CORPORATION ("BMC"), a Delaware corporation,
each with a principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, its wholly-owned subsidiary ▇▇▇▇▇▇ TRANSPORTATION
PRODUCTS, INC. ("BTP"), a Delaware corporation, with its principal place of
business at ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and BAYBANK, a Massachusetts
trust company, with its principal place of business at ▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (the "Bank") hereby agree to further
amend that certain Amended and Restated Credit Agreement dated as of July 29,
1994 among ▇▇▇▇▇▇, BMC, BTP and the Bank, as previously amended by a First
Amendment dated as of September 20, 1994, a Second Amendment dated as of April
6, 1995 and a Third Amendment dated as of May 12, 1995 (the "Credit Agreement")
and to amend the Amended and Restated Revolving Note dated July 29, 1994 as
amended April 6, 1995 and May 12, 1995 (the "Revolving Note") so as to permit up
to $4,000,000 of the revolving demand borrowings to be placed on a fixed
maturity basis. Terms defined in the Credit Agreement shall have the same
meaning herein as in the Credit Agreement.
▇▇▇▇▇▇, BMC, BTP and the Bank agree as follows:
Amendments to Credit Agreement
A. The second paragraph of the Credit Agreement entitled "Background"
is deleted and the following is substituted therefor:
BACKGROUND
The Borrowers have amended and restated the Credit Agreement
and confirmed with the Bank a credit facility under which ▇▇▇▇▇▇, BMC
and BTP may make borrowings up to $24,000,000 on a revolving, demand
basis (subject to the Borrowers' election to place up to $4,000,000 on
a fixed maturity basis) and a credit facility under which the Borrowers
have made borrowings in the original principal amount of $8,000,000 on
a term basis. ▇▇▇▇▇▇ has heretofore entered into an Purchase and Sale
Agreement dated as of July 31, 1994 (the "Purchase and Sale Agreement")
with Premix/EMS, Inc. ("Premix") for the acquisition of the assets and
business of Premix (the "Premix Acquisition"). The Borrowers are all
engaged in manufacturing and related services primarily for the
automotive industry and their respective businesses are integrally
related in such a way that increased access to credit for any one
Borrower will result in direct and indirect benefits to the other
Borrowers. All Borrowings will be on a joint and several basis and are
to be secured by real and personal property of ▇▇▇▇▇▇ and BMC and the
personal property of BTP, excluding all of BTP's machinery and
equipment. The Bank is willing to amend the Agreement and extend such
credit to the Borrowers under the terms and conditions hereinafter set
forth and is willing to so consent and amend the Credit Agreement,
subject to the conditions set forth herein.
B. Sections 1.1 and 1.2 of the Credit Agreement are hereby deleted and
the following substituted therefor:
1.1 The Term Credit. At the time of the initial closing under
the Credit Agreement ▇▇▇▇▇▇ and BMC borrowed, subject to the terms and
conditions hereof, and the Bank made an advance of funds to ▇▇▇▇▇▇ and
BMC in the amount of $5,280,000, now repaid with proceeds of the 1994
term facility. Under this Amended and Restated Credit Agreement the
Borrower may borrow, subject to the terms and conditions hereof, and
the Bank will make an advance of funds to the Borrower in the amount of
$8,000,000 under the 1994 term facility.
1.2 The Term Notes. The original advance under the Term Credit
is evidenced by a promissory note dated December 30, 1988 in the form
of Exhibit A-1 attached hereto (the "1988 Term Note") of ▇▇▇▇▇▇ and BMC
payable to the Bank in the principal amount of $5,280,000. The 1988
Term Note bears interest, payable monthly, at a rate designated in
Section 1.7. The amount borrowed by ▇▇▇▇▇▇ under the 1994 term facility
is evidenced by a promissory note in the form of Exhibit A-2 attached
hereto (the "1994 Term Note"), payable to the Bank in the principal
amount of $8,000,000 dated as of July 29, 1994 and delivered at the
closing under the 1994 Term Note (the "1994 Term Loan Closing"). The
1994 Term Note shall bear interest as provided in Section 1.7. The
principal of the 1994 Term Note is payable in equal monthly
installments of $66,667 commencing October 1, 1994 with a final
installment in the amount of the then remaining balance of principal
and interest on September 1, 1999. Payments of interest and principal
on the 1994 Term Note (sometimes hereinafter referred to as the "Term
Note") shall be due on the first day of each month.
C. Sections 1.4-1.9 of the Credit Agreement are hereby deleted and the
following substituted therefor:
1.4 The Revolving Credit. Subject to the terms and conditions
hereof but subject at all times to the discretion of the Bank, the
Borrowers may borrow, repay and reborrow funds from the Bank under the
revolving credit (the "Revolving Credit") in an aggregate amount not to
exceed (a) the Borrowing Base, as defined below or (b) $24,000,000 (the
"Revolving Credit Availability"). All Loans by the Bank under the
Revolving Credit are subject to the discretion of the Bank and are
payable ON DEMAND; provided, however, that at the election of the
Borrowers $4,000,000 may be placed on a fixed maturity basis, payable
August 1, 1998 (the "Fixed Maturity Carve Out Loan"). The availability
of borrowings under the Revolving Credit shall be subject to annual
review by the Bank and shall not be extended beyond December 31 in any
year unless the Bank in its discretion, based upon circumstances at
that time, elects to extend the Revolving Credit for a further period.
Without intending to limit the discretion of the Bank in determining
whether or not to extend the Revolving Credit, it is understood that
any extension shall include the establishment of mutually satisfactory
financial covenants for such extension period, based upon financial
projections furnished by the Borrowers pursuant to Section 5.1(g). If
the Bank elects not to extend the Revolving Credit and no Event of
Default (as hereinafter defined) shall have occurred and be continuing,
the Bank will provide the Borrowers with a written notice at least
ninety (90) days prior to terminating the Revolving Credit.
1.5 The Revolving Note.
(a) Advances under the Revolving Credit are evidenced in an
amended and restated, demand promissory note of the Borrowers in the
form of Exhibit B attached hereto (the "Revolving Note") payable to the
order of the Bank in the principal amount of $24,000,000 or, if less,
the aggregate amount of all unpaid advances under the Revolving Credit
minus the Fixed Maturity Carve Out Loan. The Revolving Note shall bear
interest, payable monthly on the first day of each month at a rate
designated in Section 1.7.
(b) The Borrowers' election of the Fixed Maturity Carve Out
Loan shall be evidenced by the execution and delivery of a fixed
maturity promissory note of Borrowers in the form of Exhibit B-2 (the
"Fixed Maturity Carve Out Note") payable to the order of the Bank in
the principal amount of $4,000,000 to be due and payable on August 1,
1998. Provided that no event of default has occurred, no principal
payments are required on the Fixed Maturity Carve Out Note prior to
maturity. The Fixed Maturity Carve Out Note shall bear interest,
payable monthly on the first day of each month at a rate designated in
Section 1.7.
1.6 Prepayments on the Revolving Credit. Subject to compliance
with Section 1.10, amounts borrowed under the Revolving Credit
(including amounts under the Fixed Maturity Carve Out Loan) may be
prepaid, in whole or in part, at any time and, prior to demand or the
occurrence of an event of default and subject at all times to the
discretion of the Bank, may be reborrowed. Payments with respect to the
Revolving Credit by check or draft on accounts assigned as security to
the Bank will be credited as payment against the Revolving Credit
receipt of such payment by the Bank.
1.7 Interest on the Term Note and the Revolving Credit;
Pricing Options. The Borrower shall pay interest on the unpaid
principal amount of each Note at the following rates per annum, as
selected by the Borrowers, as provided below:
(a) Interest on the 1988 Term Note.
Amounts outstanding under the 1988 Term Note
shall bear interest at the annual rate of interest announced
by the Bank from time to time as its "prime rate" (the "Prime
Rate") plus 0.5%, interest payable monthly in arrears.
(b) Interest on the 1994 Term Note.
(1) Prime Rate Advance. Loans or advances
based on the Bank's Prime Rate ("Prime Rate Advances"), shall
bear interest at the Prime Rate plus 0.5% payable monthly in
arrears.
(2) Eurodollar Advances. Loans or advances
based on the London interbank offered rate (or "LIBOR" as
defined below; each such loan referred to herein as a
"Eurodollar Advance"), at the Eurodollar Rate plus 2.50%,
payable at the end of each Interest Period except in the case
of an Interest Period of more than three months in which case
interest shall be payable on the 90th day following the
Advance. The "Eurodollar Rate" shall mean the rate per annum
equal to the quotient of (a) LIBOR divided by (b) a number
equal to 1.0 minus the rate (expressed as a decimal) of the
reserve requirements current on the day that is two Banking
Days prior to the beginning of the applicable Interest Period
(including without limitation, basic, supplemental, marginal
and emergency reissues) under any regulation promulgated by
the Board of Governors of the Federal Reserve System (or any
other governmental authority having jurisdiction over the
Bank) as in effect from time to time dealing with reserve
requirements prescribed for eurocurrency funding including any
reserve requirements with respect to "eurocurrency
liabilities" under Regulation D of the Board of Directors of
the Federal Reserve System. "Banking Day" shall mean any day
on which commercial banks are not authorized or required to
close in Boston and, if such day relates to a borrowing of, a
payment or prepayment of principal or interest on a Eurodollar
Advance or a notice by the Borrower with respect to any such
borrowing, payment, prepayment, a day which is also a day on
which dealings in Dollar deposits are carried out in the
London interbank market. "Interest Period" shall mean such
period commencing on the date such Eurodollar Advance is made
and ending, in the case of Eurodollar Advances under the Term
Note, on the third or sixth monthly anniversary of such date
and in the case of Eurodollar Advances under the Revolving
Credit on the first, second or third monthly anniversary of
such date, as selected by the Borrower. "LIBOR" shall mean for
a subject Interest Period, the rate of interest, at
approximately 11:00 a.m. Burlington, Massachusetts time, two
Banking Days prior to the first day of such Interest Period,
as being the rate at which deposits in Dollars are offered to
the Bank by first-class banks on the London interbank market
for deposits for such Interest Period in amounts comparable to
the then aggregate principal amount of the requested
Eurodollar Advance.
(c) Interest on the Revolving Credit (including
Fixed Maturity Carve Out Loan).
(1) Prime Rate Advances. Prime Rate Advances
under the Revolving Credit shall bear interest at the Prime
Rate.
(2) Eurodollar Advances. Eurodollar advances
shall bear interest at the Eurodollar Rate plus 2.00% payable
at the end of each Interest Period, which shall be one, two or
three months as selected by the Borrower.
1.8 Requests for Advances; Selection of Applicable Pricing
Option and Interest Period. Requests for loans or advances under the
Revolving Credit or the election of a new interest rate mode or the
continuation of a Eurodollar Advance under the Term Note or the
Revolving Credit may be made on any Banking Day in writing or by
telephone and confirmed in writing. Each request shall constitute a
confirmation by the Borrowers that all representations and warranties
contained in Section III remain true and correct as though made at the
time of the proposed borrowing (except to the extent such
representation and warranty related specifically to an earlier date)
and the Bank, may at its option, require a certificate to such effect
signed by the chief financial officer of ▇▇▇▇▇▇. The Borrowers agree to
indemnify and hold the Bank harmless for any action, loss or expense
taken or incurred by the Bank in good faith in reliance upon any loan
or advance request. Each loan or advance request shall specify the
amount of the loan or advance, the date the loan or advance request is
to be made, the pricing option - whether a Prime Rate Advance or a
Eurodollar Advance. In the event the Borrowers fail to choose a pricing
option with respect to a loan or advance request or with respect to the
continuation or conversion of a Eurodollar Advance at maturity, the
Borrowers shall be deemed to have chosen the Prime Rate. All requests
for loans or advances may be made by ▇▇▇▇▇▇ as agent for the Borrowers.
(a) Prime Rate Advances. Requests for Prime Rate
Advances may be made on any Banking Day in writing or by
telephone by a representative of the Borrowers. If such a
request is received by the Bank prior to 2:00 P.M. on a
Banking Day, the advance shall be made on such Banking Day and
otherwise on the next Banking Day. All advances under the
Revolving Credit shall be made by crediting the account of
▇▇▇▇▇▇, BMC or BTP, as designated in the request for advance,
at the Bank or another bank in the BayBank system. If an
account is not designated in the request for advance, the
proceeds of the advance shall be credited to the account of
▇▇▇▇▇▇ as agent for the Borrowers.
(b) Eurodollar Advances. Each request for a
Eurodollar Advance shall be irrevocable and shall be made
before 2:00 P.M. two Banking Days prior (a) to the date such
Eurodollar Advance is to be made or (b) the end of an Interest
Period on an outstanding Eurodollar Advance which is to be
continued as a Eurodollar Advance. The Borrower shall specify
in the loan request the Interest Period for the loan, which
shall be one, two but not more than three months. In the event
the Borrowers request a Eurodollar Advance but fail to state
the duration of the Interest Period, the Borrowers shall be
deemed to have selected one month. Each Eurodollar Advance
shall be at least equal to $1,000,000 and higher multiples of
$500,000.
1.9 Conversion or Continuation of Interest Election under the
Term Note and the Revolving Credit. Eurodollar Advances shall mature
and become payable in full on the last day of the Interest Period
relating to such Eurodollar Advance. The Borrowers may, from time to
time, elect to convert advances outstanding under the Term Note and the
Revolving Credit from Prime Rate Advances to Eurodollar Advances and at
the maturity of a Eurodollar Advance may continue such Eurodollar
Advance or convert to Prime Rate Advances; provided however that there
may not be more than one Eurodollar Advance outstanding at any time
under each of the Term Note and the Revolving Credit.
D. Section 1.12 of the Credit Agreement is hereby deleted and the
following substituted therefor:
1.12 Mandatory Prepayment on the Revolving Credit. If at any
time the unpaid principal amount of the Revolving Note and the Fixed
Maturity Carve Out Notice exceeds the Revolving Credit Availability or
Borrowing Base, whichever is less, the Borrowers shall immediately make
a payment on the Revolving Note in an amount equal to such excess, and
the Bank may, without prior notice to the Borrowers, charge accounts of
such Borrowers with the Bank to effect such payment.
E. Section 1.16 of the Credit Agreement is hereby deleted and the
following is substituted therefor:
1.16 Use of Proceeds. Proceeds of the 1994 Term Note and
borrowings under the Revolving Credit were used to finance a portion of
the Premix Acquisition, to refinance existing debts and for working
capital and up to $500,000 may be used by ▇▇▇▇▇▇ to repurchase its
common stock which will be held as treasury stock.
F. Section 1.18 of the Credit Agreement is hereby deleted and the
following substituted therefor:
1.18 Yield Protection, Etc.
(a) Additional Costs. If any present or future
applicable law ("Applicable Law"), which expression as used herein
includes statutes, rules and regulations thereunder and interpretations
thereof by any competent court or by any governmental or other
regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and
notices at any time or from time to time hereafter made upon or
otherwise issued to the Bank by any central bank or other fiscal,
monetary or other authority (whether or not having the force of law),
including without limitation any change according to a prescribed
schedule of increasing requirements, whether or not known or in effect
as of the date hereof, shall with respect to the Term Note, the
Revolving Credit or undertakings of the Bank under this Agreement
(i) subject the Bank to any tax, levy,
impost, duty, charge, fee, deduction or withholding of any
nature with respect to this Agreement or undertakings of the
Bank hereunder or the payment to the Bank of any amounts due
to it hereunder,
(ii) materially change the basis of taxation
of payments to the Bank of the principal of or interest on any
amounts payable to the Bank hereunder,
(iii) impose or increase or render
applicable any special or supplemental deposit or reserve or
similar requirements or assessment against assets held by, or
deposits in or for the account of, or any liabilities of, or
loans by the Bank in respect of the transactions contemplated
herein,
(iv) impose on the Bank any other condition
or requirement with respect to this Agreement, the Revolving
Credit, the Term Note or loans or advances thereunder;
and if the result of any of the foregoing is
(A) to increase the cost to the Bank of making,
funding or maintaining all or any part of the Revolving
Credit, the Term Note or advances or loans,
(B) to reduce the amount of principal, interest or
other amount payable to the Bank hereunder, or
(C) to require the Bank to make any payment or to
forego any interest or other sum payable hereunder, the amount
of which payment or foregone interest or other sum is
calculated by reference to the gross amount of any sum
receivable or deemed received by the Bank from the Borrowers
hereunder,
then, and in each such case not otherwise provided for hereunder, the
Borrowers will upon demand promptly following the Bank's notice
pertaining to such matters accompanied by calculations thereof in
reasonable detail, pay to the Bank such additional amounts as will be
sufficient to compensate it for such additional cost, reduction,
payment or foregone interest or other sum; provided that the foregoing
provisions of this sentence shall not apply in the case of any
additional cost, reduction, payment or foregone interest or other sum
resulting from any taxes charged upon or by reference to the overall
net income, profits or gains of the Bank.
(b) Capital Adequacy. If, after the date hereof, the
Bank shall have determined that any Applicable Law regarding capital
requirements for banks or bank holding companies generally, or any
change therein or in the interpretation or administration thereto by
any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by the
Bank with any of the foregoing, either imposes a requirement upon the
Bank to allocate additional capital resources or increases the Bank's
requirement to allocate capital resources or its undertaking to make,
or to its maintenance of, the Revolving Credit, the Term Note or loans
or advances thereunder, which has or would have the effect of reducing
the return on the Bank's capital to a level below that which it could
have achieved (taking into consideration its then existing policies
with respect to capital adequacy and assuming full utilization of its
capital) but for such applicability, change, interpretation,
administration or compliance, by any amount deemed by the Bank to be
material, the Bank shall promptly after its determination of such
occurrence give notice thereof to the Borrowers. In such event
commencing on the date of such notice (but not earlier than the
effective date of any such applicability, change, interpretation,
administration or compliance), the fees payable hereunder shall
increase by an amount which will, in the Bank's reasonable
determination, evidenced by calculations in reasonable detail furnished
to the Borrowers, compensate the Bank for such reduction, its
determination of such amount to be conclusive and binding upon the
Borrower, absent manifest error. In determining such amount, the Bank
may use any reasonable methods of averaging, allocating or attributing
such reduction among its customers.
G. Section 2.1 of the Credit Agreement is hereby deleted and the
following substituted therefor:
2.1 Security Documents. The Term Note, the Revolving Note and
the Fixed Maturity Carve Out Note (the "Notes") and all other
obligations of each of the Borrowers to the Bank, whether direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising (collectively, the "Obligations") shall be secured by
a security interest in all personal property of ▇▇▇▇▇▇ and BMC pursuant
to amended and restated security agreements dated July 29, 1994 and a
security interest in inventory, accounts and other intangible personal
property of BTP pursuant to a security agreement dated July 29, 1994
(collectively, the "Security Agreements"), by a mortgage on BMC's real
estate located in Seabrook, NH, mortgages on BMC's real estate in
Michigan and Indiana and by mortgages on the real estate acquired by
▇▇▇▇▇▇ in the Premix Acquisition located in Ohio and Indiana (the
"Mortgages"). The Security Agreements, and the Mortgages may, from time
to time hereafter, be referred to as the "Security Documents".
H. Section 7.1 of the Credit Agreement is hereby deleted and the
following substituted therefor:
7.1 Defaults. In the event of any of the following ("Events of
Default") if:
a. any Borrower shall fail to pay any
principal or interest on the Notes;
b. any representation or warranty of any
Borrower herein, in any of the Security Documents, or in any
certificate delivered hereunder shall prove to have been false
in any material respect as of the time made or furnished;
c. any Borrower shall fail to perform any
covenant contained in Section VI hereof;
d. any Borrower shall fail to perform any
other term, covenant or agreement contained herein or in any
of the Security Documents and such default shall continue for
ten days after notice thereof has been received by such
Borrower from any source;
e. any Borrower shall fail to pay at
maturity, or within any applicable period of grace, any
obligation for borrowed monies or advances or any capitalized
or non-capitalized lease obligations or fail to observe or
perform any term, covenant or agreement contained in any
agreement by which it is bound, evidencing or securing
borrowed monies or advances, for such period of time as would,
or would have permitted (assuming the giving of appropriate
notice if required) the holder or holders thereof or of any
obligations issued thereunder to accelerate the maturity
thereof but only to the extent that the acceleration of such
obligation would have a Material adverse effect on the
financial condition, business or continued operations of any
Borrower;
f. any Borrower shall admit in writing its
inability to pay its debts;
g. any Borrower shall suffer a receiver or
trustee for all or substantially all of its property to be
appointed; or institute or suffer to be instituted against it
in any proceedings under any law relating to bankruptcy,
insolvency, arrangement, reorganization or relief of debtors;
h. any Borrower shall suffer any judgment to
be entered against it and not dismissed, satisfied or stayed
within 60 days, or any writ of attachment issued and not
released within 60 days or any execution or any similar
process to be issued or levied against a substantial part of
its property;
i. any Borrower terminates its existence or
dissolves; or
j. the trustee of any Pension Plan shall
fail to pay when due all benefits payable thereunder
then, and in every such event, the Bank may declare all amounts owing
with respect to the Term Note and the Fixed Maturity Carve Out Note and
all other obligations to be, and they shall upon written notice and the
lapse of the time periods specified above forthwith become, immediately
due and payable without presentment, demand, protest or other notice of
any kind, all of which are hereby expressly waived. Notwithstanding the
foregoing recital of defaults with respect to the Term Note and the
Fixed Maturity Carve Out Note, the Revolving Note shall at all times be
due and payable on demand without regard to the existence or
non-existence of an Event of Default, provided, however, that upon the
occurrence of an Event of Default under subsection (g) above all such
amounts due under the Term Note, the Fixed Maturity Carve Out Note and
the Revolving Note shall automatically become immediately due and
payable without demand or any action on the part of the Bank.
I. Section 9.1 of the Credit Agreement is hereby amended by adding,
immediately following the definition of "Finished Goods Inventory, the
following:
"Fixed Maturity Carve Out Loan" see ss. 1.4.
"Fixed Maturity Carve Out Note" see ss. 1.5(b).
J. The Credit Agreement is hereby amended by the addition of a new
Exhibit B-I in the form attached hereto.
Amendments to Revolving Note
K. The Revolving Note is hereby amended by deleting the first paragraph
and substituting the following therefor:
For value received the undersigned, jointly and
severally, hereby promise to pay to the order of BAYBANK (the
"Bank"), ON DEMAND, the principal sum of $24,000,000 or, if
less, the aggregate unpaid amount of all advances made by the
Bank under the "Revolving Credit" as defined in the Amended
and Restated Credit Agreement referred to below and
outstanding at the time of such demand (minus the outstanding
balance of the Fixed Maturity Carve Out Loan as defined in the
Amended and Restated Credit Agreement), together with interest
thereon or on such portion thereof as may be from time to time
outstanding, at such rate and payable at such times and in
such manner as are provided in the said Amended and Restated
Credit Agreement. As provided in the said Amended and Restated
Credit Agreement, the aggregate amount borrowed under the
"Revolving Credit" shall not exceed $24,000,000.
L. The Bank agrees to ▇▇▇▇ the original of the Revolving Note to refer
to this Amendment and to affix a copy of this Amendment to the original of the
Revolving Note.
Security Agreements
▇▇▇▇▇▇, BMC and BTP confirm that the obligations under the Credit
Agreement, as herein amended, and the Notes are secured by the Security
Documents including a security interest in all personal property of ▇▇▇▇▇▇ and
BMC pursuant to Amended and Restated Security Agreements dated as of July 29,
1994 and a security interest in inventory, accounts and other intangible
personal property of BTP pursuant to a Security Agreement dated as of July 29,
1994.
Effectiveness of Amendment
Upon receipt by the Bank of:
(i) a certificate of the Secretary or Assistant Secretary of
each Borrower as to the action taken to authorize this Amendment and
the transactions contemplated hereby; and
(ii) an opinion, satisfactory in scope, form and substance to
the Bank and its counsel as to the due authorization, execution and
delivery and legal and binding effect of this Amendment and the absence
of conflict with any mortgage, indenture or other material agreement
known to such counsel;
this Amendment shall become effective as of the 28th day of July, 1995.
Failure of the Borrowers to furnish to the Bank amendments to the
mortgages previously granted the Bank by ▇▇▇▇▇▇ in property located in Ohio and
Indiana and by BMC on real property located in New Hampshire, Michigan and
Indiana to reflect the increase in the secured obligations pursuant to this
Amendment and to furnish the Bank appropriate endorsements to the mortgagee's
title insurance policies previously furnished on or before August 31, 1995
shall, constitute an Event of Default under the Credit Agreement.
The Bank and the Borrowers also agree that the Third Amendment to the
Credit Agreement shall be amended by the substitution of "August 31, 1995" for
"June 30, 1995" in the penultimate paragraph.
This Amendment may be executed in several counterparts, each of which
shall be an original, and with the same effect as if signatures thereto were all
upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their duly authorized representatives as of July 28, 1995.
BAYBANK ▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
▇▇▇▇▇▇ MANUFACTURING
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ TRANSPORTATION
PRODUCTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
EXHIBIT B-2
FIXED MATURITY CARVE OUT NOTE
$4,000,000
July 28, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
For value received the undersigned, jointly and severally, hereby
promise to pay to the order of BAYBANK (the "Bank"), on or before August 1,
1998, the principal sum of $4,000,000 together with interest thereon or on such
portion thereof as may be from time to time outstanding at such rate and payable
at such times and manner as are provided in the Credit Agreement.
Payments of principal and interest shall be made at the times and in
the manner specified in the Credit Agreement. Payments shall be made, in such
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts, at the office of the Bank in
Burlington, Massachusetts or, at the option of the holder hereof, in such manner
and at such other place in the United States of America as the holder shall have
designated to the Company in writing.
This Note is issued under the Amended and Restated Credit Agreement
dated as of July 29, 1994, as amended, (the "Credit Agreement") between the
undersigned and the Bank and is subject to the terms and conditions of the
Credit Agreement, is subject to certain mandatory payments, and may be prepaid
in whole or in part upon the terms and conditions specified in the Credit
Agreement.
Under certain circumstances, as specified in the Credit Agreement, the
principal of this Note may be declared due and payable in the manner and with
the effect provided in the Credit Agreement.
▇▇▇▇▇▇ CORPORATION
(Corporate Seal)
By:____________________________
▇▇▇▇▇▇ MANUFACTURING
CORPORATION
(Corporate Seal)
BY:___________________________
▇▇▇▇▇▇ TRANSPORTATION PRODUCTS,
INC.
(Corporate Seal)
BY:___________________________