Exhibit 10.68
SECOND AMENDMENT TO CAPITAL CALL AGREEMENT
This SECOND AMENDMENT TO CAPITAL CALL AGREEMENT (this "Amendment") is
dated as of this ___ day of March, 2001, by and among Xxxxxx Financial, Inc., a
Delaware Corporation (in its individual capacity, "Xxxxxx"), as Agent (in such
capacity, "Agent") on behalf of the Lenders party to the Credit Agreement
described below, Harvest Partners III, L.P., a Delaware limited partnership
("Harvest LP"), Xxxx International Holdings, Inc., a Delaware corporation
("Holdings") and Xxxx Industries, Incorporated, Deflecta-Shield Corporation,
Belmor Autotron Corp., DFM Corp., Auto Ventshade Company and Smittybilt, Inc.
(each a "Borrower" and collectively, the "Borrowers").
RECITALS:
A. The Borrowers, Holdings, the other Loan Parties, Xxxxxx, as Agent
and a Lender, and the other Lenders are parties to a Credit Agreement dated as
of February 27, 1998 (as such agreement has from time to time been amended,
supplemented or otherwise modified to and including the date hereof and as it
shall hereafter be further amended, supplemented or otherwise modified, the
"Credit Agreement").
B. The Borrowers, the Agent, Holdings and Harvest LP are parties to a
Capital Call Agreement dated as of November 14, 2000 (as amended, supplemented
or modified to and including the date hereof and as it shall hereafter be
further amended, supplemented or otherwise modified, the "Capital Call
Agreement").
C. Holdings, the Borrowers, Harvest LP and the Agent desire to enter
into a Waiver and Fifth Amendment to the Credit Agreement of even date herewith
among Borrowers, Holdings, the other Loan Parties, Xxxxxx, as Agent and a Lender
and the other Lenders ("Fifth Amendment") and make certain modifications to the
Capital Call Agreement in connection therewith to, among other things,
accelerate the contribution of an additional equity investment in Holdings in
order to provide additional funds to Holdings and the Borrowers to meet their
obligations.
NOW, THEREFORE, in consideration of the foregoing premises, and for
other good and valuable consideration, the sufficiency and receipt of all of
which are acknowledged and intending to be bound hereby, the Agent, Holdings,
the Borrowers and Harvest LP hereby agree as follows:
1. Recitals. The Recitals set forth above are incorporated into this
Amendment and the Capital Call Agreement.
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2. Defined Terms. All capitalized terms used in this Amendment
without definition shall have the same meanings as those ascribed them in the
Credit Agreement or the Capital Call Agreement.
3. Amendments. Upon the Agent's acceptance hereof in the space
provided for that purpose below and satisfaction of the conditions precedent
specified in Section 5 hereof, the Capital Call Agreement shall be and hereby is
amended as follows:
3.1. Paragraph 1 of the Capital Call Agreement is hereby amended to
delete the definitions of "First Test Date", "Second Test Date", "Proposed
Transactions" and "Third Test Date" where they appear therein.
3.2. Paragraph 2(a) of the Capital Call Agreement is hereby amended
in its entirety to read as follows:
"(a) Harvest LP hereby agrees that:
(i) On or before December 31, 2000, Harvest LP
shall, or shall cause a designee of Harvest LP acceptable
to the Agent in its sole discretion to, make a
contribution of Five Million Dollars ($5,000,000) to the
equity of Holdings (the "First Capital Call"). Holdings
shall immediately thereafter contribute the entire
$5,000,000 amount of the First Capital Call to the equity
of such Borrower or Borrowers as the Agent may require.
Such Borrower or Borrowers shall immediately thereafter
apply the entire $5,000,000 amount of the First Capital
Call to reduce the outstanding principal balance of the
Revolving Loans, but not as a permanent reduction of the
Revolving Loan Commitment; provided, however, that upon
the making of the First Capital Call, the Agent shall
immediately establish a reserve on the Borrowing Base
equal to the amount of the First Capital Call;
(ii) On or before March 31, 2001, Harvest LP
shall, or shall cause a Designee of Harvest LP acceptable
to the Agent in its sole discretion to, make a
contribution of Five Million Dollars ($5,000,000) to the
equity of Holdings (the "Second Capital Call"). Holdings
shall immediately thereafter contribute the entire
$5,000,000 amount of the Second Capital Call to the equity
of such Borrower or Borrowers as the Agent may require.
Such Borrower or Borrowers shall immediately thereafter
apply the entire $10,000,000 amount of the First Capital
Call and the Second Capital Call to reduce the outstanding
principal balance of the Term Loans in accordance with
Section 1.5(E) of the Credit Agreement. After the entire
$10,000,000 amount of the First Capital Call and the
Second Capital Call shall have been so applied to prepay
the Term Loans, the reserve established on the Borrowing
Base pursuant to Section 3.2(a)(i) in the amount of the
First Capital Call shall be eliminated; and
(iii) In the event that subsequent to the
payment by Borrowers of interest due on August 31, 2001
under the Securities Purchase Agreements ("Interest
Payment") a Priority Default occurs as a result of the
breach of a
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covenant under the Credit Agreement based upon the Loan
Parties' financial performance for the fiscal year ending
December 31, 2001, Harvest LP shall, or shall cause a
designee of Harvest LP acceptable to Agent in its sole
discretion, to make a payment directly to Agent in the
amount of such Interest Payment (the "Third Capital
Call"), which Third Capital Call shall be applied by Agent
to reduce the outstanding balance of the Revolving Loans,
but not as a permanent reduction of the Revolving Loan
Commitment.
Notwithstanding the foregoing provisions of Paragraph
3.2(a)(iii), if on or after July 31, 2001, (at any date
through which EBITDA is calculated pursuant to Section 4.3
of the Credit Agreement) the ratio of Holdings' and
Borrowers' Senior Indebtedness to EBITDA is less than
3.0:1.00 as set forth in a certificate delivered to Agent
executed by the Borrower Representative detailing such
calculation (with EBITDA annualized based upon actual
results for Fiscal Year 2001 through the last day of the
fiscal period (for which EBITDA is calculated pursuant to
Section 4.3 of the Credit Agreement) of Holdings and
Borrowers ending prior to the delivery of such certificate
and calculated as illustrated on Exhibit 4.7(D)), Harvest
LP shall be relieved of its obligation to make payment of
the Third Capital Call.
3.3. The Capital Call Agreement is hereby amended to delete
Paragraphs 2(b)-(g) in their entirety and the following new Paragraph 2(b) shall
be inserted in substitution thereof:
"(b) The equity securities (including any additional shares
of such equity securities issued as a dividend thereon)
issued to Harvest LP or its designee in exchange for either
the First Capital Call or the Second Capital Call shall not
be subject to redemption until the Obligations have been
paid in full and the Commitments have been terminated."
3.4. Paragraph 3 of the Capital Call Agreement is hereby amended in
its entirety to read as follows:
"Until Harvest LP is relieved of its obligation to make payment of
the Third Capital Call as set forth in Paragraph 2(a) above, (a) Harvest LP
shall maintain funds in cash or Cash Equivalents in an aggregate amount equal to
at least $1,562,500, and (b) on the last day of each March, June, September and
December of each year, Harvest LP shall deliver to Agent and Lenders such
statements or records as shall be requested by Agent and Lenders to evidence
that Harvest LP is in compliance with the covenant set forth in clause (a)
above."
4. Representations. In order to induce the Agent to execute and
deliver this Amendment, Holdings, Harvest LP and the Borrowers hereby represent
to the Agent that as of the date hereof and as of the time that this Amendment
becomes effective, each of the representations and warranties set forth in the
Capital Call Agreement are and shall be and remain true and correct and
Holdings, Harvest LP and the Borrowers are in full compliance with all of the
terms and conditions of the Capital Call Agreement.
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5. Conditions Precedent. The effectiveness of this Amendment is
subject to the satisfaction of all of the following conditions precedent:
(a) The Agent shall have received copies executed or
certified (as may be appropriate) of:
(i) this Amendment;
(ii) the Fifth Amendment and all other Loan
Documents required thereby; and
(iii) resolutions of the board of directors of
each of Holdings and each Borrower and the members of the
general partner of Harvest LP authorizing the execution,
delivery and performance of this Amendment.
(b) All legal matters incident to the execution and
delivery hereof and of the instruments and documents contemplated
hereby shall be satisfactory to the Agent and its counsel; and
(c) As of the date this Amendment is to become effective,
the Borrowers, Holdings and Harvest LP shall be in full compliance
with all the terms and conditions of the Capital Call Agreement as
amended.
6. Miscellaneous.
6.1. Credit Agreement Unimpaired. The Borrowers and Holdings hereby
agree that notwithstanding the execution and delivery hereof, the Credit
Agreement and the other Loan Documents shall be and remain in full force and
effect and that any rights and remedies of the Agent and the Lenders thereunder,
obligations of the Loan Parties thereunder and any liens or security interests
created or provided for thereunder shall be and remain in full force and effect
and shall not be affected, impaired or discharged hereby.
6.2. Effect of Amendment. Except as specifically amended and modified
hereby, the Capital Call Agreement and the Credit Agreement and other Loan
Documents shall stand and remain unchanged and in full force and effect in
accordance with their terms. Except as specifically set forth herein, this
Amendment shall not be deemed to be a waiver of any Default or Event of Default
or any of the Agent's or the Lenders' rights or remedies all of which are hereby
expressly reserved. Reference to this specific Amendment need not be made in any
note, instrument or other document making reference to the Capital Call
Agreement or the Credit Agreement, any reference to the Capital Call Agreement
in any of such shall be deemed to be a reference to the Capital Call Agreement,
as amended hereby.
6.3. Costs and Expenses. The Borrowers and Holdings jointly and
severally agree to pay, on demand, all out-of-pocket costs and expenses incurred
by the Agent in connection with the negotiation, preparation, execution and
delivery of this Amendment and the documents and transactions contemplated
hereby, including the fees and expenses of counsel to the Agent with respect to
the foregoing.
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6.4. Counterparts; Governing Law. This Amendment may be executed in
any number of counterparts and by different parties hereto on separate
counterparts, each of which when so executed shall be an original but all of
which to constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier shall be
effective as delivery of a manually executed counterpart of this Agreement. This
Amendment shall be governed by the internal laws of the State of New York
without giving effect to its conflicts of laws principles.
[SIGNATURE PAGE FOLLOWS]
Dated as of the first date above written.
HOLDINGS: XXXX INTERNATIONAL HOLDINGS, INC.
By: /s/ Xxxxxx Vollmershausen
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Name: Xxxxxx Vollmershausen
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Title: CEO and President
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BORROWERS: XXXX INDUSTRIES, INCORPORATED
By: /s/ Xxxxxx Vollmershausen
-------------------------
Name: Xxxxxx Vollmershausen
---------------------
Title: CEO and President
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DEFLECTA-SHIELD CORPORATION
By: /s/ Xxxxxx Vollmershausen
-------------------------
Name: Xxxxxx Vollmershausen
---------------------
Title: CEO and President
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BELMOR AUTOTRON CORP.
By: /s/ Xxxxxx Vollmershausen
-------------------------
Name: Xxxxxx Vollmershausen
---------------------
Title: Chief Executive Officer
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DMF CORP.
By: /s/ Xxxxxx Vollmershausen
-------------------------
Name: Xxxxxx Vollmershausen
---------------------
Title: CEO and President
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AUTO VENTSHADE COMPANY
By: /s/ Xxxxxx Vollmershausen
-------------------------
Name: Xxxxxx Vollmershausen
---------------------
Title: CEO and President
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SMITTYBILT, INC.
By: /s/ Xxxxxx Vollmershausen
-------------------------
Name: Xxxxxx Vollmershausen
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Title: CEO and President
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AGENT: XXXXXX FINANCIAL, INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
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Title: Vice President
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HARVEST LP HARVEST PARTNERS III, L.P.
By: Harvest Associates III, LLC, its general
partner
By: /s/ Xxx Xxxxxxxx
--------------------------------
Name: Xxx Xxxxxxxx
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Title:
CONSENT AND REAFFIRMATION BY OTHER GUARANTORS
The undersigned have heretofore executed and delivered to the Agent,
Guarantees dated as of February 27, 1998, pursuant to which the undersigned have
guarantied Borrowers' and Holdings' obligations to the Agent and the Lenders.
The undersigned hereby consent to the foregoing First Amendment to Capital Call
Agreement as set forth above and reaffirm and confirm that their Guarantees and
all of the undersigneds' obligations thereunder remain in full force and effect.
The undersigned further agree that the consent of the undersigned to any further
amendments to the Capital Call Agreement shall not be required as a result of
this consent having been obtained, except to the extent, if any, required by the
Guarantees referred to above.
XXXX ACQUISITION CORP.
By: /s/ Xxxxxx Vollmershausen
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Name: Xxxxxx Vollmershausen
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Title: President
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BAC ACQUISITION CO.
By: /s/ Xxxxxx Vollmershausen
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Name: Xxxxxx Vollmershausen
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Title: President
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TRAILMASTER PRODUCTS, INC.
By: /s/ Xxxxxx Vollmershausen
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Name: Xxxxxx Vollmershausen
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Title: Chief Executive Officer
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DELTA III, INC.
By: /s/ Xxxxxx Vollmershausen
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Name: Xxxxxx Vollmershausen
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Title: President
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