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EXHIBIT 4.26
WALBRO CORPORATION
AMENDED AND RESTATED
SECOND AMENDMENT AND
WAIVER AGREEMENT
$45,000,000 Principal Amount
Senior Notes
Due October 1, 2004
Dated as of March 3, 1998
Principal Mutual Life Insurance Company
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Attention: Investment Department,
Securities Division
The Mutual Life Insurance Company of New York
MONY Life Insurance Company of America
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Nationwide Life Insurance Company
Nationwide Life and Annuity Insurance Company
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Ladies and Gentlemen:
Reference is made to the Note Agreement dated as of October 1, 1994, as
amended by the First Amendment to Note Agreement dated as of July 25, 1995 (the
"Note Agreement") between Walbro Corporation, a Delaware corporation (the
"Company") and you pursuant to which the Company issued $45,000,000 principal
amount of its 7.68% Senior Notes due October 1, 2004 (the "Notes"). You are
sometimes referred to hereafter as the "Holders."
Certain events have occurred under the Note Agreement as to which the
Company is requesting your waiver and in consideration thereof is requesting and
agreeing to certain modifications to the Note Agreement which are embodied in
this Amended and Restated Second Amendment and Waiver Agreement (the "Second
Amendment").
In consideration of the premises and for good and valuable
consideration, the receipt and sufficiency of which is acknowledged, the Company
and the Holders agree as follows:
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SECTION 1. WAIVER
1.1. Waiver Period. In accordance with the notice given to the Company
by the Holders in their letter to the Company dated January 20, 1998 (the
"January 20 Letter") the Defaults asserted in the January 20 Letter (which the
Company denies, but the Holders continue to assert) would become Events of
Default under the Note Agreement on March 4, 1998 which date was confirmed by
the last paragraph of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇'▇ Letter to the Company dated February
13, 1998 (the "February 13 Letter"). The Holders agree that the March 4, 1998
date is hereby waived until the earlier of May 31, 1998 (the "Waiver Expiration
Date") or the occurrence of an event described in Section 1.2.
1.2. Termination of Waiver. Upon the occurrence of any of the
following, the waiver contained in Section 1.1 above shall immediately
terminate:
(a) Any default by the Company or any subsidiary in the performance or
compliance with any of the provisions of this Second Amendment, the Security
Agreements, the Intercreditor Agreement, the Guarantees, the Credit Agreement,
or that certain Purchase Money Loan Agreement dated as of August 27, 1997 among
the Company and the Banks (the "Purchase Money Agreement");
(b) Any representation or warranty made by or on behalf of the Company
or any subsidiary in or in connection with this Second Amendment, the Security
Agreements, or the Intercreditor Agreement proves incorrect as of the date of
issuance or making;
(c) The occurrence of an Event of Default under the Note Agreement;
provided, however, that solely for purposes of this Section 1.2(c) and without
amending the Note Agreement, any period during which a Default may be cured
before becoming an Event of Default and thereby terminating the waiver contained
in Section 1 shall be deemed to be ten Business Days; and provided further, that
the foregoing proviso shall not be deemed to provide a cure period to the
Company where one has not heretofore existed;
(d) The occurrence of an Event of Default under the Intercreditor
Agreement;
(e) The institution by any of the Banks or the Agent of any of their
rights or remedies under the Credit Agreement, the Purchase Money Agreement, the
Security Agreements, the Intercreditor Agreement or of any other proceedings
against the Company;
(f) The Banks refusal to advance money under the terms of the Credit
Agreement;
(g) The Company's auditors, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Company, either refuse
to issue their audit opinion or issue a qualified audit opinion, in connection
with the Company's financial statements for its fiscal year ended December 31,
1997;
(h) The Banks fail to deliver their written consent to Section 2.3
(the "Bank Consent") to the Holders on or before 4:00 p.m., Chicago Time, March
13, 1998, which consent
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shall be in form and content acceptable to the Holders and shall contain a
waiver of any Events of Defaults (as defined the Credit Agreement) through the
date thereof.
(i) By action of the Holders of at least 66-2/3% in principal amount
of the outstanding Notes following receipt of a notice pursuant to the second
sentence of Section 2.2.
SECTION 2. UNDERTAKINGS AND REPRESENTATIONS OF THE COMPANY
2.1. Payments under the Note Agreement. The Company will use its best
efforts to pay all of the Lender Indebtedness evidenced by the Notes and the
Note Agreement, including but not limited to all accrued and unpaid interest,
outstanding principal, Make-Whole Amounts and outstanding expenses (including
attorneys fees) related thereto, no later than the Waiver Expiration Date.
2.2. Modification of Lender Indebtedness. Without the prior written
consent of the Holders, which consent may be granted or withheld in the sole and
exclusive discretion of the Holders, neither the Company nor any of its
subsidiaries shall enter into, acquiesce in, consent to, request or seek to
obtain, any waiver, amendment, modification, extension, forbearance, consent or
other alteration of the Credit Agreement, the Purchase Money Agreement or any
other agreements entered into pursuant to or in furtherance thereof, provided
that any such waiver, amendment, modification, extension, forbearance, consent
or other alteration requires the approval of any Holder under or otherwise be
restricted by the Intercreditor Agreement, as determined by such Holder.
Furthermore, the Company shall give the Holders reasonable prior written notice
of the Company's or any subsidiary's intention to enter into, acquire in,
consent to, request or seek to obtain any waiver, amendment, modification,
extension, forbearance, consent or other alteration of the Credit Agreement, the
Purchase Money Agreement or any other agreements entered into pursuant to or in
furtherance thereof (whether or not restricted by the Intercreditor Agreement),
which notice shall describe in reasonable detail the terms and conditions of any
of the foregoing.
2.3. Interest. Commencing on March 3, 1998, the interest rate on the
Notes shall be 9.68% per annum and shall be payable monthly on the first day of
each month commencing April 1, 1998. Notwithstanding the foregoing, the Make
Whole Amount, if any, shall be calculated using the original interest rate on
the Notes.
2.4. Commitment Letters. The Company will deliver promptly to the
Holders copies of any final form of commitment letter or term sheet (prior to
execution or acceptance thereof) and of any executed commitment letter for any
financings of any sort by the Company or any of its subsidiaries or Affiliates.
Subject to any restrictions on disclosure imposed by the financial
institution(s) involved, the Company will provide you promptly with copies of
any draft or preliminary term sheets or commitment letters as they are received
by the Company.
2.5. Limitation on Additional Borrowings under the Purchase Money
Agreement. The Company will not incur any Indebtedness under the Purchase Money
Agreement without the
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prior written consent of the Holders, which consent may be granted or withheld
in the sole and exclusive discretion of the Holders.
2.6. Status Reporting. On each Thursday commencing Thursday, March 12,
1998, the Company will update the Holders either orally or in writing as to the
progress of the Company's efforts toward the payment referred to in Section 2.1
hereof and with respect to the Company's overall financial and business
situation.
2.7. Representations and Warranties. The Company represents and
warrants to the Holders as follows:
(a) Except as asserted in the January 20 Letter and the February 13
Letter (which the Company does not admit), no defaults, events of default or
circumstances which but for the passage of time or the giving of notice would
constitute defaults or events of default exist under the Note Agreement, the
Intercreditor Agreement, the Credit Agreement, the Purchase Money Agreement or
the Security Agreements.
(b) Since December 12, 1997, neither the Company nor the Banks have
requested or entered into any waiver, consent, amendment, modification,
extension, or alteration of or with respect to the Credit Agreement or the
Purchase Money Agreement.
(c) The representations and warranties contained in the Note Agreement
and the Intercreditor Agreement remain in full force and effect and are hereby
ratified, confirmed, remade and approved in all respects as of the date hereof
except for changes to those representations and warranties set forth on the
attached Schedule 2.5.
SECTION 3. EFFECTIVE DATE
Condition to Effectiveness. This Second Amendment shall become
effective, retroactive to the date hereof, upon receipt by the Holders of each
of the following items:
3.1. Second Amendment. A counterpart of this Second Amendment duly
executed by the Company.
3.2. Other Documents. Such other documents and instruments incident to
this Second Amendment, the Security Agreements or the Intercreditor Agreement as
the Holders may reasonably request.
3.3. Consent of Banks. Notwithstanding the foregoing, Section 2.3 shall
become effective, retroactive to the date hereof, upon the satisfaction of the
conditions contained in Sections 3.1 and 3.2 above and receipt of the Bank
Consent.
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SECTION 4. MISCELLANEOUS
4.1. Ratification. Except to the extent expressly waived, amended,
modified, deleted or added to hereby, the terms and provisions of the Note
Agreement and the Intercreditor Agreement are ratified, confirmed, remade and
approved in all respects as of the date hereof.
4.2. Reference to and Effect on the Note Agreement. Upon the
effectiveness of this Second Amendment, each reference in the Note Agreement and
in other documents describing or referencing the Note Agreement to the
"Agreement," "Note Agreement," "hereunder," "hereof," "herein," or words of like
import referring to the Note Agreement, shall mean and be a reference to the
Note Agreement, as amended hereby.
4.3. Expenses. The Company confirms its agreement to pay within ten
Business Days of receipt of a statement therefor all reasonable fees and
expenses of special counsel to the Holders and all other fees and expenses
incurred by the Holders in connection with the negotiation and execution of this
Second Amendment, including but not limited costs of transportation and
accommodations for meetings.
4.4. Binding Effect. This Second Amendment shall be binding upon and
inure to the benefit of the respective successors and assigns of the parties
hereto.
4.5. Governing Law. This Second Amendment shall be governed by and
construed in accordance with Illinois law.
4.6. Counterparts. This Second Amendment may be executed in any number
of counterparts, each executed counterpart constituting an original but
altogether only one instrument.
4.7. Facsimile. This Second Amendment may be executed by facsimile
signature.
4.8. No Third Party Beneficiary. This Second Amendment is intended only
for the benefit of the Company and the Holders and no other party shall be
entitled to rely on any of the benefits and rights conferred hereunder.
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IN WITNESS WHEREOF, the Company and the Holders have caused this Second
Amendment to be executed and delivered by their respective officer or officers
thereunto duly authorized.
WALBRO CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Treasurer, CFO
PRINCIPAL MUTUAL LIFE INSURANCE
COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Title: ▇▇▇▇▇ ▇▇▇▇▇, Counsel
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Counsel
J. ROMEO & CO.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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Title: ▇▇▇▇▇▇ ▇▇▇▇, V.P.
NATIONWIDE LIFE INSURANCE
COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Sr. Investment Manager
NATIONWIDE LIFE AND ANNUITY
INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Sr. Investment Manager
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