EXHIBIT 10.28
AMENDMENT NO. 4
TO
LOAN AND SECURITY AGREEMENT
as of July 20, 2004
Congress Financial Corporation (Southern)
000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Re: Loan and Security Agreement, dated October 11, 2000
Ladies and Gentlemen:
Congress Financial Corporation (Southern) ("Lender") and Valentec Xxxxx,
LLC, formerly known as Valentec International Corporation, LLC ("Valentec"),
Safety Components Fabric Technologies, Inc. ("SCFT"), Automotive Safety
Components International, Inc. ("Automotive International"), Automotive Safety
Components International GmbH & Co. KG ("German Borrower"), Automotive Safety
Components International Limited ("UK Borrower" and together with Valentec,
SCFT, Automotive International and German Borrower, individually each a
"Borrower" and collectively, "Borrowers"), Safety Components International, Inc.
("Safety"), ASCI Holdings Germany (DE), Inc. ("ASCI Germany"), ASCI Holdings
U.K. (DE), Inc. ("ASCI UK"), ASCI Holdings Mexico (DE), Inc. ("ASCI Mexico"),
ASCI Holdings Czech (DE), Inc. ("ASCI Czech"), Automotive Safety Components
International, S.A. de C.V. ("Automotive Safety Mexico") and Automotive Safety
Components International s.r.o. ("Automotive Safety Czech" and together with
Safety, ASCI Germany, ASCI UK, ASCI Mexico, ASCI Czech and Automotive Safety
Mexico, each individually a "Guarantor" and collectively, "Guarantors") have
entered into financing arrangements pursuant to which Lender has made and may
make loans and advances to Borrowers as set forth in the Loan and Security
Agreement, dated October 11, 2000, by and among Lender, Borrowers and
Guarantors, as amended by Amendment No. 1 and Consent to Loan and Security
Agreement, dated as of November 2, 2001, Amendment No. 2 to Loan and Security
Agreement, dated as of October 11, 2002, and Amendment No. 3 and Consent to Loan
and Security Agreement, dated as of October 8, 2003 (as the same now exists or
may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, the "Loan Agreement") and other agreements, documents and instruments
referred to therein or at any time executed and/or delivered in connection
therewith or related thereto, together with this Amendment (all of the
foregoing, including the Loan Agreement, as the same now exist or may hereafter
be amended, modified, supplemented, extended, renewed, restated or replaced,
being collectively referred to herein as
the "Financing Agreements"). All capitalized terms used herein shall have the
meaning assigned thereto in the Loan Agreement, unless otherwise defined herein.
Borrowers and Guarantors have requested that Lender agree to amend the
Loan Agreement to, among other things, provide for certain investments by
Borrowers and Guarantors in certain Affiliates operating in Asia, including in
The People's Republic of China, and in Eastern Europe, including in Romania.
Lender is willing to agree to such requests subject to the terms and
conditions contained herein.
In consideration of the forgoing and the agreements and covenants
contained herein, and for other good and valuable consideration, the adequacy
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendments.
(a) Definitions.
(i) Amendments to Definitions. The definition of "Subsidiary"
in Section 1.109 of the Loan Agreement is hereby amended to add the following
proviso on to the end of such definition as follows:
"provided, that, the term Subsidiary shall not include Safety
Asia, Safety HK, or Safety Romania, or any subsidiary of any
of them."
(ii) Additional Definitions. The following terms shall have
the meanings given to them below and the Loan Agreement shall be deemed and is
hereby amended to include, in addition and not in limitation, the following
definitions:
(A) "Amendment No. 4" shall mean Amendment No. 4 to Loan
and Security Agreement, dated as of July 20, 2004, by and among Lender,
Borrowers and Guarantors.
(B) "June 2004 Consent" shall mean the Consent to
Formation of ASCI Holdings Asia Pacific (DE), LLC, dated as of June 7, 2004 by
and among Borrowers, Guarantors and Lenders as the same now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
(C) "Safety Asia" shall mean ASCI Holdings Asia Pacific
(DE), LLC, a Delaware limited liability company, and its successors and assigns.
(D) "Safety HK" shall mean SCI China Investment Company,
Limited, a company incorporated under the laws of Hong Kong, The People's
Republic of China, and its successors and assigns.
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(E) "Safety Romania" shall mean Automotive Safety
Components International RO S.R.L., a company organized under the laws of
Romania, and its successors and assigns.
(b) Loans, Investments and Guarantees.
(i) Section 9.10 of the Loan Agreement is hereby amended by
deleting clause (m) of such Section and replacing it with the following:
"(m) notwithstanding anything to the contrary set forth in the
June 2004 Consent, unsecured loans by any Borrower or Guarantor to
Automotive Safety Czech, Automotive Safety Mexico, Safety Asia,
Safety HK, and Safety Romania, provided, that, as to any such loan,
each of the following conditions is satisfied as determined by
Lender in good faith: (i) each month Borrowers and Guarantors shall
provide to Lender a report in form and substance satisfactory to
Lender of the amount of such loans made in the immediately preceding
month, any repayments in connection therewith and the outstanding
amount thereof as of the last day of the immediately preceding
month, (ii) the Indebtedness arising pursuant to any such loan shall
not be evidenced by a promissory note or other instrument, unless,
the single original of such note or other instrument is delivered to
Lender to hold as part of the Collateral, with such endorsement
and/or assignment by the payee of such note or other instrument as
Lender may require, (iii) as of the date of the making of such loan
and after giving effect thereto, the Borrower or Guarantor making
such loan is and shall be Solvent, (iv) if the loan is made by a
Borrower, as of the date of the making of such loan and after giving
effect thereto, the weekly average Excess Availability of the
Borrower making such loan for each of the immediately preceding four
weeks shall have been not less than the US Dollar Equivalent of
US$1,000,000, (v) such loans are permitted under the laws and
regulations applicable to each such Borrower or Guarantor and the
recipient of any such loans, (vi) as of the date of the making of
such loan and after giving effect thereto, no Event of Default or
act, condition or event which with notice or passage of time or both
would constitute an Event of Default shall exist or have occurred,
(vii) as of the date of the making of such loan and after giving
effect thereto, the aggregate weekly average Excess Availability of
all US Borrowers for each of the immediately preceding four weeks
shall have been not less than the US Dollar Equivalent of
US$5,000,000, (viii) the amount of all such loans to Automotive
Safety Czech, Automotive Safety Mexico, Safety Asia, Safety HK, and
Safety Romania shall not exceed $10,000,000 in the aggregate and
(ix) as of the date of the making of such loan, Adjusted Pre-Tax
Income of the Borrower or Guarantor making such loan for each of the
two most recently ended fiscal quarters shall have been greater than
zero;"
2. Representations, Warranties and Covenants. Each Borrower and Guarantor,
jointly and severally, represents, warrants and covenants with and to Lender as
follows, which representations, warranties and covenants are continuing and
shall survive the execution and delivery hereof, the truth and accuracy of, or
compliance with each, together with the
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representations, warranties and covenants in the other Financing Agreements,
being a continuing condition of the making or providing of any Loans or Letter
of Credit Accommodations by Lender to Borrowers:
(a) neither the execution and delivery of this Amendment, or the
documents, agreements or instruments executed or delivered in connection
therewith or related thereto (collectively, together with this Amendment, the
"Amendment Documents") nor the consummation of the transactions herein or
therein contemplated, nor compliance with the provisions hereof or thereof are
in contravention of any law or regulation or any order or decree of any court or
Governmental Authority applicable to Borrowers or Guarantors or any of their
respective Subsidiaries in any respect, or conflict with or result in the breach
of, or constitutes a default in any respect under any mortgage, deed of trust,
security agreement, agreement or instrument to which any Borrower or Guarantor
is a party or may be bound, or violates any provision of the Certificate of
Incorporation or By-Laws (or similar organizational documents) of any Borrower
or Guarantor;
(b) the Amendment Documents have been duly authorized, executed and
delivered by all necessary action on the part of each Borrower and Guarantor
which is a party hereto and thereto and, if necessary, their respective equity
holders, and the agreements and obligations of each Borrower and Guarantor
contained herein and therein constitute legal, valid and binding obligations of
each Borrower and Guarantor enforceable against such entities in accordance with
their respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or similar laws limiting creditors' rights
generally and by general equitable principles;
(c) no consent, approval or other action of, or filing with or
notice to any Governmental Authority is required in connection with the
execution, delivery and performance of any of the Amendment Documents by any
Borrower or Guarantor;
(d) all of the representations and warranties set forth in the Loan
Agreement and the other Financing Agreements, each as amended hereby, are true
and correct in all material respects on and as of the date hereof as if made on
the date hereof, except to the extent any such representation or warranty is
made as of a specified date, in which case such representation or warranty shall
have been true and correct as of such date;
(e) Safety and Automotive International each represent that Safety
Asia, Safety HK and Safety Romania and any subsidiary of any of them shall not
engage in any business other than the businesses of Safety and its Subsidiaries
on the date hereof and any businesses reasonably related, ancillary or
complementary to the businesses in which Safety and its Subsidiaries are engaged
on the date hereof which businesses shall be operated by Safety Asia, Safety HK
and Safety Romania and any subsidiary of any of them in Asia or Eastern Europe
(as applicable), and upon reasonable request by Lender, Borrowers and Guarantors
shall provide Lender information with respect to the assets, liabilities,
obligations, formation or operations of Safety Asia, Safety HK and Safety
Romania and any subsidiary of any of them, including but not limited to any tax
returns filed by or on behalf of Safety Asia, Safety HK, Safety Romania or any
subsidiary of any of them in any jurisdiction;
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(f) Borrowers and Guarantors have delivered to Lender true, correct
and complete copies of the Amendment Documents;
(g) Safety and Automotive International shall provide Lender with
fifteen (15) days prior written notice of the formation of any subsidiaries of
Safety Asia, Safety HK or Safety Romania or any subsidiary of any of them and
shall provide Lender with such other further information as Lender shall
reasonably request with respect thereto; and
(h) no Event of Default or act, condition or event which with notice
or passage or time or both would constitute an Event of Default, exists or has
occurred and is continuing after giving effect to the provisions hereof.
3. Amendment Fee. In consideration of the amendments set forth herein,
Borrowers shall on the date hereof, pay to Lender, and Lender may, at its
option, charge the account of Borrowers maintained by Lender, a fee in the
amount of $5,000, which fee shall constitute part of the Obligations and is
fully earned and payable on the date hereof.
4. Conditions Precedent. The amendments set forth herein shall be
effective upon the satisfaction of each of the following conditions precedent in
a manner satisfactory to Lender:
(a) Lender shall have received an original of this Amendment, duly
authorized, executed and delivered by Borrowers and Guarantors;
(b) all requisite corporate action and proceedings in connection
with this Amendment and the other Amendment Documents shall be in form and
substance satisfactory to Lender, and Lender shall have received all information
and copies of all documents, including records of requisite corporate action and
proceedings which Lender may have requested in connection therewith, such
documents where requested by Lender or its counsel to be certified by
appropriate corporate officers or governmental authorities;
(c) no Event of Default or act, condition or event which with notice
or passage of time or both would constitute an Event of Default shall exist or
have occurred and be continuing after giving effect to the provisions hereof;
(d) Lender shall have received the fee referred to in Section 3
hereof;
(e) Lender shall have received a true and correct copy of any
consent, waiver or approval to or of this Amendment or any of the other
Amendment Documents, which any Borrower or Guarantor is required to obtain from
any other Person, and such consent, approval or waiver shall be in form and
substance satisfactory to Lender; and
(f) the aggregate Excess Availability of Borrowers as determined by
Lender, as of the effective date of this Amendment, shall be not less than US
Dollar Equivalent of US$10,000,000 after giving effect to the transactions
contemplated hereunder.
5. Additional Items To Be Delivered. Each Borrower and Guarantor hereby
agrees that, in addition to all other terms, conditions and provisions set forth
in the other Financing
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Agreements, Borrowers and Guarantors shall deliver or cause to be delivered to
Lender by August 30, 2004, true, correct and complete copies of the documents
relating to the formation of Safety Asia and Safety HK.
6. Waiver.
(a) Subject to the terms and conditions contained herein, Lender
hereby waives as of the effective date hereof, the Event of Default arising
under Section 9.22(b) of the Loan Agreement as a result of the failure of
Borrowers to dissolve the following entities prior to the date hereof: (i) Xxxxx
& Associates, Inc., (ii) Automotive Safety Components - Polska SP. Zo and (iii)
Automotive Safety Components Asia-Pacific Ltd. (collectively, the "Corporate
Dissolution Default"); provided, that, Lender shall have received evidence, in
form and substance satisfactory to Lender that such entities have been dissolved
on or before May 1, 2005. Except as Lender may otherwise expressly agree in
writing, such waiver shall automatically and without further action by the
parties hereto be deemed rescinded and terminated and of no force and effect
with respect to the Corporate Dissolution Default any time after May 1, 2005, if
Borrowers fail to deliver to Lender, evidence that Borrowers have taken all
steps required t by the laws of the applicable jurisdiction to effect such
dissolution on or before May 1, 2005, it being understood and agreed that the
effect of such recission and termination shall be to permit Lender to exercise
its rights and remedies in accordance with the terms of the Loan Agreement with
respect to the Corporate Dissolution Default immediately on May 2, 2005 without
any further notice or passage of time.
(b) Lender has not waived and is not by this agreement waiving, and
has no present intention of waiving, any other Events of Default, which may have
occurred prior to the date hereof, or may be continuing on the date hereof or
any Event of Default which may occur after the date hereof, whether similar to
the Corporate Dissolution Default or otherwise (other than the Corporate
Dissolution Default to the extent set forth in Section 6(a) hereof). Lender
reserves the right, in its discretion, to exercise any or all of its rights and
remedies arising under the Financing Agreements applicable or otherwise, as a
result of any Events of Default which may have occurred prior to the date
hereof, or are continuing on the date hereof, or any Event of Default which may
occur after the date hereof (other than the Corporate Dissolution Default, to
the extent set forth in Section 6(a) above), whether similar to the Corporate
Dissolution Default or otherwise, and including the Corporate Dissolution
Default upon or after the recission and termination of the waivers provided for
above in Section 6(a) above. Nothing contained herein shall be construed as a
waiver of the failure of Borrowers to comply with the terms of the Loan
Agreement and the other Financing Agreements after such time.
7. General.
(a) Effect of this Amendment. Except as expressly provided herein,
no other changes or modifications to the Financing Agreements are intended or
implied, and in all other respects the Financing Agreements are hereby
specifically ratified, restated and confirmed by all
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parties hereto as of the date hereof. To the extent any conflict exists between
the terms of this Amendment and the Financing Agreements, the terms of this
Amendment shall control.
(b) Additional Events of Default. The parties hereto acknowledge,
confirm and agree that the failure of Borrowers or Guarantors to comply with the
covenants, conditions and agreements contained herein shall constitute an Event
of Default under the Financing Agreements subject to the cure period set forth
in Section 10.1(a)(ii) of the Loan Agreement.
(c) Further Assurances. The parties hereto shall execute and deliver
such additional documents and take such additional actions as may be necessary
to effectuate the provisions and purposes of this Amendment.
(d) Governing Law. The rights and obligations hereunder of each of
the parties hereto shall be governed by and interpreted and determined in
accordance with the internal laws of the State of New York (without giving
effect to principles of conflicts of laws or other rules of law that would
result in the application of the law of any jurisdiction other than the State of
New York).
(e) Binding Effect. This Amendment is binding upon and shall inure
to the benefit of Lender, Borrowers, Guarantors and their respective successors
and assigns. Any amendment contained herein shall not be construed to constitute
an amendment to any other or further action by Borrowers or Guarantors or to
entitle Borrowers or Guarantors to any other amendment. The Loan Agreement and
this Amendment shall be read and construed as one agreement.
(f) Counterparts, etc. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original
but all of which when taken together shall constitute one and the same
instrument. In making proof of this Amendment, it shall not be necessary to
produce or account for more than one counterpart hereof signed by each of the
parties hereto. This Amendment may be executed and delivered by telecopier with
the same force and effect as if it were a manually executed and delivered
counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective duly authorized officers as
of the date first written above.
SAFETY COMPONENTS FABRIC
TECHNOLOGIES, INC.
By: /s/ R. Xxxx Xxxxxxx
-----------------------------------------
Title: Treasurer
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AUTOMOTIVE SAFETY COMPONENTS
INTERNATIONAL, INC.
By: /s/ R. Xxxx Xxxxxxx
-----------------------------------------
Title: Treasurer
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AUTOMOTIVE SAFETY COMPONENTS
INTERNATIONAL GmbH & CO. KG
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Title: Managing Director
--------------------------------------
AUTOMOTIVE SAFETY COMPONENTS
INTERNATIONAL LIMITED
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Title: Managing Director
--------------------------------------
VALENTEC XXXXX, LLC (formerly known
as Valentec International Corporation, LLC)
By: /s/ R. Xxxx Xxxxxxx
-----------------------------------------
Title: Treasurer
--------------------------------------
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
SAFETY COMPONENTS INTERNATIONAL, INC.
By: /s/ R. Xxxx Xxxxxxx
-----------------------------------------
Title: Treasurer
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ASCI HOLDINGS GERMANY (DE), INC.
By: /s/ R. Xxxx Xxxxxxx
-----------------------------------------
Title: Treasurer
--------------------------------------
ASCI HOLDINGS U.K. (DE), INC.
By: /s/ R. Xxxx Xxxxxxx
-----------------------------------------
Title: Treasurer
--------------------------------------
ASCI HOLDINGS MEXICO (DE), INC.
By: /s/ R. Xxxx Xxxxxxx
-----------------------------------------
Title: Treasurer
--------------------------------------
ASCI HOLDINGS CZECH (DE), INC.
By: /s/ R. Xxxx Xxxxxxx
-----------------------------------------
Title: Treasurer
--------------------------------------
AUTOMOTIVE SAFETY COMPONENTS
INTERNATIONAL, S.A. de C.V.
By: /s/ R. Xxxx Xxxxxxx
-----------------------------------------
Title: Treasurer
--------------------------------------
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
AUTOMOTIVE SAFETY COMPONENTS
INTERNATIONAL S.R.O.
By: /s/ Ing Luboslav Vasieck
---------------------------------------
Title: Managing Director
------------------------------------
AGREED:
CONGRESS FINANCIAL CORPORATION
(SOUTHERN)
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Title: Vice President
--------------------------------
