AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT dated as of April 16, 1997 by and among JPE, Inc., a
Michigan corporation ("Company"), the Banks signatory hereto and Comerica Bank,
as agent for the Banks (in such capacity, "Agent").
R E C I T A L S:
A. Company, Banks and Agent entered into that certain Third Amended and
Restated Credit Agreement dated as of December 31, 1996 ("Agreement").
B. Company, Banks and Agent desire to amend the Agreement as set forth
below.
NOW, THEREFORE, the parties agree as follows:
1. Capitalized terms used but not defined herein shall have the meanings
set forth in the Agreement.
2. Section 1.4 of the Agreement is amended to read as follows:
"`Advance(s)' shall mean Revolving Credit Advance(s), Line of
Credit Advance(s) and Swing Line Advance(s)."
3. Section 1.10 of the Agreement is amended to read as follows:
"1.10 `Applicable Interest Rate' shall mean (i) in respect of
Revolving Credit Advances, the Eurocurrency-Based Rate or the
Prime-based Rate, applicable to such Advance (in the case of a
Eurocurrency-based Advance, for the relevant Interest Period), (ii) in
respect of Line of Credit Advances, the Prime-based Rate applicable to
such Advance and (iii) in respect of Swing Line Advances, the
Prime-based Rate or the Quoted Rate applicable to such Advance for the
relevant Interest Period, as selected by Company from time to time
subject to the terms and conditions of this Agreement."
4. Section 1.11 of the Agreement is amended to read as follows:
"`Banks' shall mean Comerica Bank, Bank One Dayton, N.A.,
National Bank of Canada, NBD Bank and Xxxxxx Trust and Savings Bank
and such other financial institutions from time to time parties hereto
as lenders and shall include the Revolving Credit Banks, the Line of
Credit Banks and the Swing Line Bank and any assignee which becomes a
Bank pursuant to Section 14.9 hereof.
5. The reference to "Schedule 1.43" in Section 1.45 of the Agreement is
deleted and "Schedule 1.45" is inserted in lieu thereof.
6. Section 1.71 of the Agreement is amended to read as follows:
"1.71 `Majority Banks' shall mean at any time the Banks holding
not less than sixty one percent (61%) of the sum of the aggregate
principal amount of the Indebtedness outstanding at such time (each of
the Revolving Credit Banks being entitled to vote its Percentage in
each outstanding Letter of Credit) or, if no Indebtedness is then
outstanding, the Banks holding not less than sixty one percent (61%)
of the aggregate Percentage of the Revolving Credit Aggregate
Commitment and the Line of Credit Aggregate Commitment as set forth in
part (c) on Exhibit "G" annexed hereto.
7. Section 1.74 of the Agreement is amended to read as follows:
"`Notes' shall mean the Revolving Credit Notes, the Line of
Credit Notes and the Swing Line Note."
8. Section 1.77 of the Agreement is amended to read as follows:
"`Percentage' shall mean, with respect to any Bank, its
percentage share of the Revolving Credit Aggregate Commitment and its
risk participation in Letters of Credit as set forth in part (a) on
Exhibit "G" annexed hereto and its percentage share, if any, of the
Line of Credit Aggregate Commitment as set forth in part (c) on
Exhibit G annexed hereto, as Exhibit "G" may be revised from time to
time by Agent in accordance with Section 14.9 hereof."
9. Section 1.86 of the Agreement is amended to read as follows:
"1.86. `Prime-based Rate' shall mean, for any day, (i) with
respect to Line of Credit Advances, two percent (2%) plus the Prime
Rate, and (ii) with respect to all other Advances, that rate of
interest which is equal to the greater of (A) the Prime Rate or (B)
the Alternate Base Rate."
10. Sections 1.107 through 1.114 are added to the Agreement as follows:
"1.107 "Line of Credit" shall mean the line of credit loan to be
advanced to the Company by the Line of Credit Banks pursuant to
Article 2.A hereof, in an aggregate amount (subject to the terms
hereof), not to exceed, at any one time outstanding, the Line of
Credit Aggregate Commitment.
"1.108 "Line of Credit Advance" shall mean a borrowing requested
by Company and made by Line of Credit Banks under Section 2.A.1 of
this Agreement.
"1.109 "Line of Credit Aggregate Commitment" shall mean Ten
Million Dollars ($10,000,000), subject to reduction or termination
under Section 2.A.6, 8.21 or 10.2 hereof.
"1.110 "Line of Credit Banks" shall mean Comerica Bank, Xxxxxx
Trust and Savings Bank and NBD Bank and such other financial
institutions from time to time parties hereto as lenders of the Line
of Credit."
"1.111 "Line of Credit Maturity Date" shall mean the earlier to
occur of (i) October 27, 1998 and (ii) the date on which the Line of
Credit Aggregate Commitment shall be terminated pursuant to Section
2.A.6 or 10.2 hereof."
"1.112 "Line of Credit Notes" shall mean the line of credit notes
described in Section 2.A.1 hereof dated April 16, 1997, made by
Company to each of the Line of Credit Banks in the form annexed to
this Agreement as Exhibit "L", as such notes may be amended or
supplemented from time to time, and any other notes issued in
substitution, replacement or renewal thereof from time to time.
"1.113 "Request for Line of Credit Advance" shall mean a Request
for Line of Credit Advance issued by Company under Section 2.A.3 of
this Agreement in the form annexed hereto as Exhibit "M".
"1.114 `BATCO Acquisition' shall mean the acquisition by Dayton
Parts, Inc. of all of the issued and outstanding stock of Brake, Axle
and Tandem Company, a Texas corporation.
11. All references to the term "Advance" in Article 2 of the Agreement
shall mean "Revolving Credit Advance."
12. Section 2.3(c) of the Agreement is amended to read as follows:
"(c) the principal amount of such requested Revolving Credit
Advance, plus the principal amount of all other Revolving Credit
Advances and Swing Line Advances then outstanding hereunder, plus the
aggregate undraw portion of any Letters of Credit which shall be
outstanding as of the date of the requested Revolving Credit Advance
and the aggregate face amount of Letters of Credit requested but not
yet issued, plus the aggregate amount of all outstanding Letter of
Credit Obligations, less the principal amount of any outstanding Swing
Line Advance to be refunded by the requested Revolving Credit Advance
shall not exceed the then applicable Revolving Credit Aggregate
Commitment;"
13. Section 2.7 of the Agreement is amended to read as follows:
"2.7 Reduction of Indebtedness; Revolving Credit Aggregate
Commitment. If at any time and for any reason the aggregate principal
amount of Revolving Credit Advances and Swing Line Advances hereunder
to Company, plus the aggregate undraw amount of any Letters of Credit
which shall be outstanding at such time, shall exceed the then
applicable Revolving Credit Aggregate Commitment, Company shall
immediately reduce any pending request for a Revolving Credit Advance
on such day by the amount of such excess and, to the extent any excess
remains thereafter, immediately repay an amount of the Indebtedness
outstanding under the Revolving Credit Notes equal to such excess and,
to the extent such Indebtedness consists of Letter of Credit
Obligations, provide cash collateral on the basis set forth in Section
10.2 hereof. Company acknowledges that, in connection with any
repayment required hereunder, it shall also be responsible for the
reimbursement of any prepayment or other costs required under Section
12.1 hereof; provided, however, that Company shall, in order to reduce
any such prepayment costs and expenses, first prepay such portion of
the Indebtedness outstanding under the Revolving Credit Notes then
carried as a Prime-based Advance, if any."
14. Article 2.A is added to the Agreement as follows:
"2.A LINE OF CREDIT
"2.A.1 Line of Credit Commitment. Subject to the terms and
conditions of this Agreement each Line of Credit Bank severally and
for itself alone agrees to make Advances of the Line of Credit to
Company from time to time on any Business Day during the period from
the effective date hereof until (but excluding) the Line of Credit
Maturity Date in aggregate amount not to exceed at any one time
outstanding each such Line of Credit Bank's Percentage of the Line of
Credit Aggregate Commitment. All of such Line of Credit Advances
hereunder shall be evidenced by the Line of Credit Notes, under which
advances, repayments and readvances may be made, subject to the terms
and conditions of this Agreement.
"2.A.2 Accrual of Interest and Maturity. (a) The Line of Credit
Notes, and all principal and interest outstanding thereunder, shall
mature and become due and payable in full on the Line of Credit
Maturity Date, and each Line of Credit Advance evidenced by the Line
of Credit Note from time to time outstanding hereunder shall, from and
after the date of such Line of Credit Advance, bear interest at its
applicable interest rate. The amount and date of each Line of Credit
Advance, its applicable interest rate, and the amount and date of any
repayment shall be noted on Agent's records, which records would be
conclusive evidence thereof, absent manifest error; provided, however,
that any failure by the agent to record any such information shall not
relieve Company of its obligation to repay the outstanding principal
amount of such Line of Credit Advance, all interest incurred thereon
and in amount payable with respect thereto in accordance with the
terms of this Agreement and the other Loan Documents.
"Section 2.A.3 Request for Advances. Company may request a Line
of Credit Advance only after delivery to agent of a Request for Line
of Credit Advance executed by an authorized officer of Company,
subject to the following provisions hereof: (a) each such Request for
Line of Credit Advance shall set forth the information required on the
Request for Line of Credit Advance form annexed hereto as Exhibit "M",
including without limitation, the proposed date of a Line of Credit
Advance, which must be a Business Day; (b) each such Request for Line
of Credit Advance shall be delivered to Agent by noon (Detroit time)
on such proposed date; (c) the principal amount of such Request of
Line of Credit Advance, plus the principal amount of all other Line of
Credit Advances then outstanding under the Line of Credit Notes, shall
not exceed the then applicable Line of Credit Aggregate Commitment;
(d) the principal amount of such Line of Credit Advance shall be at
least Five Hundred Thousand Dollars ($500,000) or any multiple
thereof; (e) each Request for Line of Credit Advance, once delivered
to Agent, shall not be revocable by Company and shall constitute and
include a certification by the Company as of the date thereof that:
(i) both before and after the Line of Credit Advance, the obligations
of the Company and the Guarantors set forth in this Agreement and the
Loan Documents, as applicable, are valid, binding and enforceable
obligations of said parties; (ii) to the best knowledge of Company,
all conditions to Line of Credit Advances (including, without
limitation, Section 6.9 hereof) have been satisfied; (iii) both before
and after the Line of Credit Advance, there is no Default or Event of
Default in existence; and (iv) both before and after the Line of
Credit Advance, the representations and warranties contained in this
Agreement and the Loan Documents are true and correct in all material
respects.
"2.A.4 Disbursement of Line of Credit Advances.
"(a) Upon receiving any Request for Line of Credit Advance from
Company under Section 2.A.3 hereof, Agent shall promptly notify each
Line of Credit Bank by wire, telecopy, telex or by telephone
(confirmed by wire, telecopy or telex) of the amount of such Line of
Credit Advance to be made and the date such Line of Credit Advance is
to be made by said Line of Credit Bank pursuant to its Percentage of
the Line of Credit Advance. Unless such Line of Credit Bank's
commitment to make Line of Credit Advances hereunder shall have been
suspended or terminated in accordance with this Agreement, each Line
of Credit Bank shall send the amount of its Percentage of the Line of
Credit Advance in same day funds in Dollars to Agent at the office of
Agent located at Xxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 not later
than 2:00 p.m. (Detroit time) on the date of such Advance.
"(b) Subject to submission of an executed Request for Line of
Credit Advance by Company without exceptions noted in the compliance
certification therein and to the other terms and conditions hereof,
Agent shall make available to Company the aggregate of the amounts so
received by it from the Line of Credit Banks under this Section 2.A.4,
in like funds, not later than 4:00 p.m. (Detroit time) on the date of
such Line of Credit Advance by credit to an account of Company
maintained with Agent or to such other account or third party as
Company may reasonably direct.
"(c) Unless Agent shall have been notified by any Line of Credit
Bank prior to the date of any proposed Line of Credit Advance that
such Line of Credit Bank does not intend to make available to Agent
such Line of Credit Bank's Percentage of such Line of Credit Advance,
Agent may assume that such Line of Credit Bank has made such amount
available to Agent on such date, as aforesaid and may, in its sole
discretion and without obligation to do so, in reliance upon such
assumption, make available to Company a corresponding amount. If such
amount is not in fact made available to Agent by such Line of Credit
Bank in accordance with Section 2.A.4(a), as aforesaid, Agent shall be
entitled to recover such amount on demand from such Line of Credit
Bank. If such Line of Credit Bank does not pay such amount forthwith
upon Agent's demand therefor, the Agent shall promptly notify Company,
and Company shall pay such amount to Agent. Agent shall also be
entitled to recover from such Line of Credit Bank or from Company, as
the case may be, interest on such amount in respect of each day from
the date such amount was made available by Agent to Company to the
date such amount is recovered by Agent, at a rate per annum equal to:
"(i) in the case of such Line of Credit Bank, the Federal Funds
Effective Rate; or
"(ii) in the case of Company, the rate of interest then
applicable to the Line of Credit Advance.
The obligation of any Line of Credit Bank to make any Line of Credit
Advance hereunder shall not be affected by the failure of any other
Line of Credit Bank to make any Line of Credit Advance hereunder, and
no Bank shall have any liability to the Company, the Agent, any other
Bank, or any other party for another Bank's failure to make any loan
or Line of Credit Advance hereunder.
"2.A.5 Reduction of Indebtedness; Line of Credit Aggregate
Commitment. If at any time and for any reason the aggregate principal
amount of Line of Credit Advances to Company exceeds the then
applicable Line of Credit Aggregate Commitment, Company shall
immediately reduce any pending request for a Line of Credit Advance on
such day by the amount of such excess and, to the extent any excess
remains thereafter, immediately repay an amount of the Indebtedness
equal to such excess.
"2.A.6 Optional Reduction or Termination of Line of Credit
Aggregate Commitment. The Company may, upon at least five (5) business
days' prior written notice to Agent, permanently reduce the Line of
Credit Aggregate Commitment in whole, at any time, or in part from
time to time without premium or penalty, provided that: (i) each
partial reduction of the Line of Credit Aggregate Commitment shall be
in an aggregate amount equal to at least Two Million Five Hundred
Thousand Dollars ($2,500,000) or a larger multiple of One Million
Dollars ($1,000,000); and (ii) the Company shall prepay in accordance
with the terms hereof the amount, if any, by which the aggregate
unpaid principal amount of Line of Credit Advance, exceeds the amount
of the Line of Credit Aggregate Commitment, taking into account the
aforesaid reductions thereof, together with the accrued or unpaid
interest on the principal amount of such prepaid Line of Credit
Advances to the date of prepayment. Reductions of the Line of Credit
Aggregate Commitment and any accompanying prepayments of the Line of
Credit Note shall be distributed by Agent to the Line of Credit Banks
in accordance with each such Bank's Percentage thereof, and will not
be available for reinstatement by or readvance to the Company. Any
reductions of the Line of Credit Aggregate Commitment shall reduce
each Line of Credit Bank's portion thereof proportionately (based upon
the applicable Percentages) and shall be permanent in and
irrevocable."
15. Section 3.2(b) of the Agreement is amended to read as follows:
"(b) the face amount of the Letter of Credit requested, plus the
aggregate principal amount of all Revolving Credit Advances and Swing
Line Advances outstanding under the Notes, plus the aggregate undraw
portion of all other outstanding Letter of Credit Obligations do not
exceed the then applicable Revolving Credit Aggregate Commitment;"
16. All references to the term "Bank(s)" in Sections 3.4, 3.6, 3.8, 3.9 and
3.11 of the Agreement shall mean "Revolving Credit Bank(s)".
17. Section 4.1 of the Agreement is amended to read as follows:
"4.1 Swing Line Commitment. Swing Line Bank shall, on the terms
and subject to the conditions hereinafter set forth, make one or more
advances (each such advance being a "Swing Line Advance") to Borrower
from time to time on any Business Day during the period from the date
hereof to (but excluding) the Revolving Credit Maturity Date in an
aggregate amount not to exceed Five Million Dollars ($5,000,000) at
any time outstanding; provided, however, that after giving effect to
all Swing Line Advances and all Revolving Credit Advances requested to
be made on such date, the aggregate principal amount of all
outstanding Revolving Credit Advance and Swing Line Advances shall not
exceed the then applicable Revolving Credit Aggregate Commitment. All
Swing Line Advances shall be evidenced by the Swing Line Note, under
which advances, repayments and readvances may be made, subject to the
terms and conditions of this Agreement. Each Swing Line Advance shall
mature and the principal amount thereof shall be due and payable by
Company on the last day of the Interest Period applicable thereto. In
no event whatsoever shall any outstanding Swing Line Advance be deemed
to reduce, modify or affect any Revolving Credit Bank's commitment to
make Revolving Credit Advances based upon its Percentage."
18. All references in Article 3 of the Agreement to the term "Advance"
shall mean "Revolving Credit Advance" and all references in Article 3 of the
Agreement to the term "Bank(s)" shall mean "Revolving Credit Bank(s)".
19. Section 4.3(c) of the Agreement is amended to read as follows:
"(c) the principal amount of such requested Swing Line Advance,
plus the principal amount of all other Revolving Credit Advances and
Swing Line Advances then outstanding hereunder, plus the aggregate
undraw portion of any Letter of Credit which shall be outstanding as
of the date of the requested Swing Line Advance, plus the aggregate
face amount of Letters of Credit requested but not yet issued, plus
the aggregate amount of all outstanding Letter of Credit Obligations
shall not exceed the then applicable Revolving Credit Aggregate
Commitment;"
20. Section 5.2 of the Agreement is amended to read as follows:
"5.2 Prime-based Interest Payments. Interest on the unpaid
balance of all Prime-based Advances from time to time outstanding
shall accrue from the date of such Advances to the Revolving Credit
Maturity Date or Line of Credit Maturity Date, as applicable (and
until paid), at a per annum interest rate equal to the Prime-based
Rate, and shall be payable in immediately available funds monthly
commencing on the first day of the month next succeeding the month
during which the initial Advance is made and on the first day of each
month thereafter. Interest accruing at the Prime-based Rate shall be
computed on the basis of a 360 day year and assessed for the actual
number of days elapsed, and in such computation effect shall be given
to any change in the interest rate resulting from a change in the
Prime-based Rate on the date of such change in the Prime-based Rate."
21. Section 8.4 of the Agreement is amended to read as follows:
"Section 8.4 Maintain Funded Debt to EBITDA Ratio. Maintain at
all times a Funded Debt to EBITDA Ratio of not more than the Maximum
Funded Debt to EBITDA Ratio. "Maximum Funded Debt to EBITDA Ratio"
shall mean the following during the period set forth below:
as of December 31, 1996 ................................. 5.50 to 1
from January 1, 1997 through March 31, 1997 ............. 5.75 to 1
from April 1, 1997 through June 30, 1997 ................ 6.5 to 1
from July 1, 1997 through September 30, 1997 ............ 5.25 to 1
from October 1, 1997 and thereafter ..................... 4.75 to 1."
22. Section 8.5 of the Agreement is amended to read as follows:
"Section 8.5 Maintain Fixed Charge Coverage Ratio. On a
Consolidated Basis, maintain at all times a Fixed Charge Coverage
Ratio of not less than the following, during the periods set forth
below:
as of December 31, 1996 ................................. 1.50 to 1
from January 1, 1997 through March 31, 1997 ............. 1.25 to 1
from April 1, 1997 through June 30, 1997 ................ 1.0 to 1
from July 1, 1997 through September 30, 1997 ............ 1.25 to 1
from October 1, 1997 and thereafter ..................... 1.75 to 1."
23. Section 8.21 is added to the Agreement as follows:
"Section 8.21 Additional Capital. On or before June 30, 1997,
furnish Agent, with copies for each Bank, with a mandate letter
executed by Company and an investment banker satisfactory to Agent
pursuant to which Company commits (subject to standard conditions) to
raise not less than $35,000,000 in capital through a public offering
or private placement in the form of unsecured debt ("Debt Offering").
The proceeds of the Debt Offering shall be used by Company solely to
repay the Indebtedness outstanding hereunder and such proceeds shall
be applied first to repay the Indebtedness outstanding under the Line
of Credit Notes, pro rata (and concurrently with such repayment, the
Line of Credit Aggregate Commitment shall be permanently reduced in an
amount equal to such repayment) and then to repay the Indebtedness
outstanding under the Revolving Credit Notes, pro rata; provided,
however, if the amount of the Debt Offering exceeds $35,000,000,
Company, at its option, may first use the proceeds thereof to make a
loan, advance or other distribution to JPE Canada to repay the
indebtedness of JPE Canada to Bank of Nova Scotia and thereafter
Company shall use the balance of the proceeds of the Debt Offering to
repay the Indebtedness in the manner and order as first set forth in
this sentence. Repayments of the Notes under this Section 8.21 shall
be made in accordance with the terms and conditions of Sections 2.8
and 2.A.6 of this Agreement, respectively, and, if any such repayment
requires the prepayment of a Eurodollar-based Advance or Quoted Rate
Advance on a day other than the last day of the Interest Period
applicable thereto, such repayment shall be subject to the prepayment
penalty provisions of Section 12.1 hereof."
24. Section 9.7 of the Agreement is amended to read as follows:
"Section 9.7 Acquisitions. Purchase or otherwise acquire or
become obligated for the purchase of all or substantially all or any
material portion of the assets of business interest of any Person,
firm or corporation, or any shares of stock (or other ownership
interest) of any corporation, trusteeship or association, or any
business or going concern or in any other manner effectuate or attempt
to effectuate an expansion of present business by acquisition, except
for (a) the Pebra Acquisition, provided that each of the requirements
set forth in subparagraphs (i) through (vii) of the definition of
Permitted Acquisition, other than clause (a) of subparagraph (vii),
have been satisfied and (b) the BATCO Acquisition, provided that each
of the requirements set forth in subparagraphs (i) through (vii) of
the definition of Permitted Acquisition have been satisfied.
25. Section 10.1(c) of the Agreement is amended to read as follows:
"(c) default in the observance or performance of any of the
conditions, covenants or agreements of Company set forth in Sections
2.7, 2.A.5, 3.6, 8.1, 8.3 through 8.6, 8.8, 8.11, 8.13, 8.15 through
8.19, 8.21, Article 9 (in its entirety), Section 13.7 or Section 14.25
hereof;"
26. Section 10.1 (n) is added to the Agreement as follows:
"(n) The failure of Company to close the Debt Offering on or
before December 31, 1997."
27. Section 10.2 of the Agreement is amended to read as follows:
"10.2 Exercise of Remedies. If an Event of Default has occurred
and is continuing hereunder: (r) the Agent shall, upon being directly
to do so by the Majority Banks, declare the Revolving Credit Aggregate
Commitment (and any commitment to increase the Revolving Credit
Aggregate Commitment) and the Line of Credit Commitment (and any
commitment to increase the Line of Credit Commitment) terminated; (w)
the Agent shall, upon being directed to do so by the Majority Banks,
declare the entire unpaid principal Indebtedness, including the Notes,
immediately due and payable, without presentment, notice or demand,
all of which are hereby expressly waived by Company; (x) upon the
occurrence of any Event of Default specified in subsection 10.1(j),
above, and notwithstanding the lack of any declaration by Agent under
preceding clause (w), the entire unpaid principal Indebtedness,
including the Notes, shall become automatically and immediately due
and payable, and the Revolving Credit Aggregate Commitment and the
Line of Credit Aggregate Commitment shall be automatically and
immediately terminated; (y) the Agent shall, upon being directed to do
so by the Majority Banks, demand immediate delivery of cash
collateral, and the Company and each Account Party agrees to deliver
such cash collateral upon demand, in an amount equal to the maximum
amount that may be available to be drawn at any time prior to the
stated expiry of all outstanding Letters of Credit, and (z) the Agent
shall, if directed to do so by the Majority Banks or all of the Banks,
as applicable (subject to the terms hereof), exercise any remedy
permitted by this Agreement, the other Loan Documents or law."
28. Section 11.2 of the Agreement is amended to read as follows:
"11.2 Application of Proceeds of Collateral. Notwithstanding
anything to the contrary in this Agreement, after an Event of Default,
the proceeds of any of the Collateral, together with any offsets,
voluntary payments by Company or any Guarantor or others and any other
sums received or collected in respect of the Indebtedness, shall be
applied, first, to the Revolving Credit Notes, the Swing Line Note,
the Line of Credit Notes and Company's cash collateral obligations
under Section 10.2(y) hereof in respect of all outstanding Letters of
Credit ("Cash Collateral Obligations) (in each case to the extent
secured by the Collateral in accordance with the Loan Documents), pro
rata based upon the ratio that the indebtedness outstanding under the
Revolving Credit Notes, Swing Line Note, Line of Credit Notes and the
Cash Collateral Obligation, respectively, bears to the aggregate
outstanding principal Indebtedness, next, to any other Indebtedness on
a pro rata based on each Bank's aggregate Percentage of the Revolving
Credit Aggregate Commitment and Line of Credit Aggregate Commitment as
set forth in part (c) on Exhibit "G" annexed hereto, and then, if
there is any excess, to Company or the applicable Guarantor, as the
case may be. The application of such proceeds and other sums to the
Revolving Credit Notes and Line of Credit Notes shall be based on each
Bank's Percentage of the aggregate of the loans evidenced by such
Notes, respectively, and the application of such proceeds and other
sums to the Cash Collateral Obligation shall be based on each Bank's
Percentage of risk participation in all outstanding Letters of Credit.
29. Section 11.3 of the Agreement is amended to read as follows:
"11.3 Pro-rata Recovery. (a) If any Revolving Credit Bank shall
obtain any payment or other recovery (whether voluntary, involuntary,
by application of offset or otherwise) on account of principal of, or
interest on, any of the Revolving Credit Notes in excess of its pro
rata share of payments then or thereafter obtained by all Revolving
Credit Banks upon principal of and interest on all Revolving Credit
Notes, such Revolving Credit Bank shall purchase from the other
Revolving Credit Banks such participation in the Revolving Credit
Notes held by them as shall be necessary to cause such purchasing
Revolving Credit Bank to share the excess payment or other recovery
ratably in accordance with the Percentage with each of them; provided,
however, that if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing holder, the
purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest.
"(b) If any Line of Credit Bank shall obtain any payment or other
recovery (whether voluntary, involuntary, by application of offset or
otherwise) on account of principal of, or interest on, any of the Line
of Credit Notes in excess of its pro rata share of payments then or
thereafter obtained by all Line of Credit Banks upon principal of and
interest on all Line of Credit Notes, such Line of Credit Bank shall
purchase from the other Line of Credit Banks such participation in the
Line of Credit Notes held by them as shall be necessary to cause such
purchasing Line of Credit Bank to share the excess payment or other
recovery ratably in accordance with the Percentage with each of them;
provided, however, that if all or any portion of the excess payment or
other recovery is thereafter recovered from such purchasing holder,
the purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest. "
30. Exhibit "G" of the Agreement is amended to read in the form annexed
hereto.
31. Exhibits "L" and "M" are added to the Agreement in the form annexed
hereto.
32. Schedule 7.7 of the Agreement is amended to read in the form annexed
hereto.
33. 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 corporate powers, have been duly
authorized, are not in contravention of law or the terms of Company's Articles
of Incorporation or Bylaws, 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 7.1 through 7.22
and 7.24 of the Agreement are true and correct on and as of the date hereof with
the same force and effect as if made on and as of the date hereof; (c) the
continuing representations and warranties of Company set forth in Section 7.23
of the Agreement are true and correct as of the date hereof with respect to the
most recent financial statements furnished to Agent by Company in accordance
with Section 8.3 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.
34. The amendments set forth above shall be effective as of April 16, 1997
upon (i) delivery to Agent of each of the documents set forth on the attached
closing agenda in form satisfactory to Agent and the Banks, (ii) delivery of
evidence satisfactory to Banks of the closing of the BATCO Acquisition, (iii)
payment by Company of a nonrefundable commitment fee of $35,000 to Agent for
distribution to the Line of Credit Banks pro rata based on their respective
Percentages of the Line of Credit Aggregate Commitment, and (iv) payment by
Company of a nonrefundable amendment fee of $55,000 to Agent for distribution to
each of the Banks pro rata based on their respective Percentages of the
Revolving Credit Aggregate Commitment.
35. This Amendment may be executed in counterparts.
IN WITNESS WHEREOF, the parties execute this Amendment as of the date set
forth above.
COMPANY: JPE, INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Its: Vice President and
Chief Financial Officer
AGENT: COMERICA BANK
By: /s/ Xxxxx .X. Xxxxxxxx
----------------------------
Its: First Vice President
REVOLVING CREDIT BANKS COMERICA BANK
and
LINE OF CREDIT BANKS: By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Its: First Vice President
NBD BANK
By: /s/ Xxxx X. Xxxxxx
----------------------------
Its: Vice President
NATIONAL BANK OF CANADA
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Its: Vice President
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Its: Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxx Xxxxx
----------------------------
Its: Vice President
BANK ONE, DAYTON, N.A.
By: /s/ Xxxx X. Xxxxxxxx
----------------------------
Its: Vice President
SWING LINE BANK: COMERICA BANK
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Its: First Vice President
