EXHIBIT 4.4(c)
AMENDMENT NO. 2 TO LOAN AGREEMENT AND CONSENT
THIS AMENDMENT, dated as of the 7th day of June, 2002, by and between
Tecstar, LLC, an Indiana limited liability company ("Company"), and Comerica
Bank, a Michigan banking corporation ("Bank");
WITNESSETH:
WHEREAS, Company and Bank desire to further amend that certain Loan
Agreement dated as of February 13, 2002, entered into by Company and Bank, as
amended by Amendment No. 1 dated May ____, 2002 (as amended, the "Agreement");
NOW, THEREFORE, it is agreed that the Agreement is further amended as
follows:
1. Company has advised Bank that (a) an affiliate of Company, Tecstar
Manufacturing Canada Limited, a New Brunswick corporation ("Tecstar
Manufacturing") desires to lease certain property located at 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxx (the "Leased Premises") and to obtain an option to
purchase the Leased Premises, all as more fully set forth in a Ground Lease
between Xxxxxxx Developments Inc., an Ontario corporation, as landlord
("Landlord"), and Tecstar Manufacturing, as tenant, in the form attached as
Exhibit "A" hereto (the "Ground Lease"), and (b) as a material condition to
Landlord's agreement to enter into the Ground Lease and the Option Agreement in
the form attached to and to be executed in accordance with the terms of the
Ground Lease (the "Option Agreement"), Landlord requires that Company execute
and deliver to Landlord an Indemnity Agreement in the form attached to the
Ground Lease (the "Indemnity Agreement") and join in the execution of the Ground
Lease for the purpose of guaranteeing all obligations of Tecstar Manufacturing
under the Ground Lease and Option Agreement (collectively, Ground Lease and the
Indemnity Agreement shall be referred to herein as the "Lease Guaranty
Documents"). Section 5.3 of the Agreement prohibits Company from entering into
the Lease Guaranty Documents without Bank's prior written consent. Company has
requested that Bank consent to its entering into the Lease Guaranty Documents
and Bank is willing to do so as hereinafter set forth. For purposes of Section
5.3 of the Agreement only, Bank consents to Company's entering into the Lease
Guaranty Documents. The foregoing consent shall not act as a consent to any
other transaction, act or omission, whether related or unrelated to the Lease
Guaranty Documents. The foregoing consent shall not extend to or affect any
obligation or covenant not expressly consented hereto or otherwise impair any of
the Bank's rights consequent therefrom. The foregoing consent is given subject
to the terms and conditions of this Amendment and shall only be effective on,
but only on, the effective date of this Amendment.
2. The following Section 4.15 is added to the Agreement after Section 4.14
thereof:
"4.15 Promptly notify the Bank of any default by Company or Tecstar
Manufacturing (as defined in Amendment No. 2 to this Agreement)
(hereinafter "Tecstar Manufacturing") under the Ground Lease, Option
Agreement or Indemnity Agreement (each as defined in Amendment No. 2 to
this Agreement)."
3. The following Section 5.14 is added to the Agreement after Section 5.13
thereof:
"5.14 Amend the Ground Lease, Option Agreement or Indemnity Agreement
(each as defined in Amendment No. 2 to this Agreement)."
4. Section 7.2 of the Agreement is amended and restated to read in its
entirety as follows:
7.2 Upon occurrence of any of the following events of default:
(a) default in the observance or performance of any of the
conditions, covenants or agreements of Company set forth in
Sections 4.1(c), (d), 4.3, 4.4, 4.5, 4.11, 4.12, 4.13, 4.14, 4.15
or Section 5;
(b) default in the observance or performance of any of the
conditions, covenants or agreements of Company set forth in
Section 4.1(a) or (b) or 4.10 and continuance for ten (10) days;
(c) default in observance or performance of any of the other
conditions, covenants or agreements of Company herein set forth,
and continuance thereof for thirty (30) days after notice to
Company by Bank;
(d) any representation or warranty made by Company herein or in any
instrument submitted pursuant hereto proves untrue in any
material respect when made;
(e) default in the observance or performance of any of the
conditions, covenants or agreements of Company, Tecstar
Manufacturing or any other person set forth in any collateral
document of security which may be given to secure the
indebtedness hereunder or in any other collateral document
related to or connected with this Agreement or the indebtedness
hereunder, and continuation of such default beyond any period of
grace specified in any such document;
(f) default (i) in the payment of any other obligation of Company or
Tecstar Manufacturing for borrowed money (other than to Bank) in
an aggregate amount in excess of Twenty Five Thousand Dollars
($25,000), or (ii) in the observance or performance of any
conditions, covenants or agreements related or given with respect
thereto, and, in the case of clause (ii) continuance thereof for
a period of time sufficient to permit the holder of the
applicable indebtedness to accelerate such indebtedness;
(g) judgments for the payment of money in excess of the sum of Twenty
Five Thousand Dollars ($25,000) in the aggregate shall be
rendered against Company or Tecstar Manufacturing and such
judgments shall remain unpaid, unvacated, unbonded or unstayed by
appeal or otherwise for a period of thirty (30) consecutive days
from the date of its entry;
(h) the occurrence of any "reportable event", as defined in the
Employee Retirement Income Security Act of 1974 and any
amendments thereto, which is determined to constitute grounds for
termination by the Pension Benefit Guaranty Corporation of any
employee pension benefit plan maintained by or on behalf of
Company for the benefit of any of its employees or for the
appointment by the appropriate United States District Court of a
trustee to administer such plan and such reportable event is not
corrected and such determination is not revoked within thirty
(30) days after notice thereof has been given to the plan
administrator or Company; or the institution of proceedings by
the Pension Benefit Guaranty Corporation to terminate any such
employee benefit pension plan or to appoint a trustee to
administer such plan; or the appointment of a trustee by the
appropriate United States District Court to administer any such
employee benefit pension plan;
(i) if there shall occur any change in the management, ownership or
control of Company which in the sole judgment of Bank is
reasonably likely to have a material adverse effect on the
Company;
(i) if Bank shall for any reason deem itself insecure; or
(j) default in the observance or performance of any of the
conditions, covenants or agreements of Company or Tecstar
Manufacturing, as applicable, under the Tecstar Manufacturing
Security Agreement, Tecstar Manufacturing Guarantee, Ground
Lease, Option Agreement or Indemnity Agreement (each as defined
in Amendment No. 2 to this Agreement), or under Tecstar
Manufacturing's Joinder to Amendment No. 2 to this Agreement; or
the revocation or termination or attempted revocation or
termination of the Tecstar Manufacturing Guarantee;
then,or at any time thereafter, unless such default is remedied, Bank
may give notice to Company declaring all outstanding indebtedness
hereunder and under the Line Note to be due and payable, whereupon all
indebtedness then outstanding hereunder and under the Line Note shall
immediately become due and payable without further notice and demand."
5. Section 7.3 of the Agreement is amended and restated to read in its
entirety as follows:
"7.3 If a creditors' committee shall have been appointed for the
business of Company or Tecstar Manufacturing; or if Company or Tecstar
Manufacturing shall have made a general assignment for the benefit of
creditors or shall have been adjudicated bankrupt, or shall have filed a
voluntary petition in bankruptcy or for reorganization or to effect a plan
or arrangement with creditors; or shall file an answer to a creditor's
petition or other petition filed against it, admitting the material
allegations thereof for an adjudication in bankruptcy or for
reorganization; or shall have applied for or permitted the appointment of a
receiver, or trustee or custodian for any of its property or assets; or
such receiver, trustee or custodian shall have been appointed for any of
its property or assets (otherwise than upon application or consent of
Company or Tecstar Manufacturing, as applicable) and such receiver, trustee
or custodian so appointed shall not have been discharged within sixty (60)
days after the date of his appointment or if an order shall be entered and
shall not be dismissed or stayed within sixty (60) days from its entry,
approving any petition for reorganization of Company or Tecstar
Manufacturing, then the Line Note and all indebtedness then outstanding
hereunder shall automatically become immediately due and payable."
6. Company hereby represents and warrants that, after giving effect to the
amendments contained herein, (a) execution, delivery and performance of this
Amendment and any other documents and instruments required under this Amendment
or the Agreement are within Company's limited liability company powers, have
been duly authorized, are not in contravention of law or the terms of Company's
Articles of Organization or Operating Agreement, and do not require the consent
or approval of any governmental body, agency, or authority; and this Amendment
and any other documents and instruments required under this Amendment or the
Agreement, will be valid and binding in accordance with their terms; (b) the
continuing representations and warranties of Company set forth in Sections 3.1
through 3.5 and 3.7 through 3.14 of the Agreement are true and correct on and as
of the date hereof with the same force and effect as made on and as of the date
hereof;(c) the continuing representations and warranties of Company set forth in
Section 3.6 of the Agreement are true and correct as of the date hereof with
respect to the most recent financial statements furnished to the Bank by Company
in accordance with Section 4.1 of the Agreement; and (d) no event of default, or
condition or event which, with the giving of notice or the running of time, or
both, would constitute an event of default under the Agreement, has occurred and
is continuing as of the date hereof.
7. Company and, by joining in the execution hereof, Tecstar Manufacturing,
each covenant and agree to furnish or cause to be furnished Bank, within 30 days
from and after the date of this Amendment, in form and substance satisfactory to
Bank, with all of the following:
(a) As security for all indebtedness and obligations of Company to
Bank under the Agreement, the Line Note or any of the other documents,
instruments or agreements executed in connection therewith, the following
(all of which is herein collectively called the "Tecstar Manufacturing
Collateral"):
(i) A Security Agreement (the "Tecstar Manufacturing Security
Agreement") granting to Bank a first priority perfected security
interest in and covering all of Tecstar Manufacturing's machinery and
equipment, furniture and fixtures, and other tangible personal
property, whether then owned or thereafter acquired; and all of
Tecstar Manufacturing's present and future accounts receivable,
inventories, contract rights, chattel paper, inventory, general
intangibles and instruments and such additional documents as relate
thereto or shall be required by the terms of said Tecstar
Manufacturing Security Agreement;
(ii) An unlimited, unconditional guaranty of payment from Tecstar
Manufacturing ("Tecstar Manufacturing Guarantee"), guarantying to Bank
payment of all present and future indebtedness and obligations of
Company to Bank;
(iii) Financing statements (or Canadian equivalents) required or
requested by Bank to perfect all security interests to be conferred
upon Bank under this Section 7 and to accord Bank a perfected first
priority security position under the Uniform Commercial Code (or
Canadian equivalent);
(iv) Such documents or certificates as may be requested by Bank
and/or are required under the terms of the Tecstar Manufacturing
Security Agreement; and
(v) Such other documents or agreements of security and
appropriate assurances of validity and perfected first priority of
lien or security interest as Bank may request at any time;
(b) an opinion of Tecstar Manufacturing's legal counsel;
(c) certified copies of resolutions of the Board of Directors of
Tecstar Manufacturing;
(d) certified copies of the Articles of Incorporation and Bylaws (or
Canadian equivalents) of Tecstar Manufacturing;
(e) certificates of good standing (or Canadian equivalents) from the
State (or Province as applicable) of incorporation of Tecstar Manufacturing
and from each jurisdiction in which Tecstar Manufacturing is required to be
qualified to do business;
(f) lien searches with respect to Tecstar Manufacturing;
(g) a lessor's acknowledgment from the Landlord; and
(h) evidence of property and liability insurance from Tecstar
Manufacturing.
The failure of Company or Tecstar to comply with any of the provisions of
this Section 7 shall constitute an event of default under the Agreement.
8. This Amendment shall be effective upon (a) execution of this Amendment
by Company and Bank, (b) execution and/or delivery by Tecstar Manufacturing to
Bank of (i) the Joinder to this Amendment, and (ii) certified organizational
documents and an authorizing resolution and incumbency certificate from Tecstar
Manufacturing, and (c) payment by Company to Bank of a non-refundable amendment
fee in the amount of $2,500.
9. Except as modified hereby all of the terms and conditions of the
Agreement shall remain in full force and effect
10. Capitalized terms not defined in this Amendment shall have the meanings
ascribed to them in the Agreement.
WITNESS the due execution hereof on the day and year first above written.
COMERICA BANK
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Vice President
TECSTAR, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
President
And by: /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Chief Financial Officer
JOINDER
The undersigned joins in the execution of this Amendment to indicate its
consent and agreement to the terms of the foregoing Amendment, and further
agrees as follows:
1. The undersigned agrees to comply with the requirements of Section 7 of
the foregoing Amendment.
2. The undersigned represents and warrants to Bank (a) that there are no
liens or security interests on any of the undersigned's property or rights to be
encumbered by the Tecstar Manufacturing Security Agreement, and (b) execution,
delivery and performance of this Joinder and any other documents and instruments
required under this Joinder or the foregoing Amendment are within the
undersigned's corporate powers, have been duly authorized, are not in
contravention of law or the terms of Company's Articles of Incorporation or
Bylaws (or Canadian equivalents), and do not require the consent or approval of
any governmental body, agency, or authority; and this Joinder and any other
documents and instruments required under this Joinder or the foregoing
Amendment, will be valid and binding in accordance with their terms.
3. The undersigned covenants and agrees that, so long as any indebtedness
remains outstanding under the Agreement, as amended by the foregoing amendment
and as it may further be amended from time to time (the "Agreement"), it shall
(a) observe and perform all of the conditions, covenants and agreements under
the Ground Lease and Option Agreement; and (b) promptly notify Bank (in the
manner for giving notice to Bank under the Agreement) of any default by the
undersigned under the Ground Lease or Option Agreement.
4. The undersigned covenants and agrees that it shall not, so long as any
indebtedness to Bank remains outstanding under the Agreement, without the prior
written consent of Bank (a) amend the Ground Lease or Option Agreement, (b)
assign or sublet all or any part of the Ground Lease or Leased Premises, (c)
exercise the option under the Option Agreement, (d) purchase, acquire or redeem
any of its capital stock or make any material change in its capital structure or
general business objects or purpose, (e) enter into any merger or consolidation
or sell, lease, transfer, or dispose of all, substantially all, or any part of
its assets, except in the ordinary course of its business, or (f) affirmatively
pledge or mortgage any of its assets, whether now owned or hereafter acquired,
or create, suffer or permit to exist any lien, security interest in, or
encumbrance thereon, except to Bank.
5. The undersigned acknowledges that execution and delivery of this Joinder
and the undertakings of the undersigned hereunder are material conditions
precedent to Bank's agreement to enter into the foregoing Amendment.
4. Capitalized terms not defined in this Joinder shall have the meanings
ascribed to them in the foregoing Amendment.
This Joinder is made as of the _____ day of June, 2002.
TECSTAR MANUFACTURING CANADA LIMITED
/s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Chief Financial Officer
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