1
EXHIBIT 10.2(a)
DATED: April 21, 1997
AMENDMENT NO. 2 (the "Amendment"), by and among The CIT
Group/Business Credit, Inc. ("CITBC"), Congress Financial Corporation, General
Electric Capital Corporation, Xxxxxx Financial, Inc., Finova Capital
Corporation and Foothill Capital Corporation (each a "Lender" and collectively
the "Lenders"), CITBC as agent for the Lenders (the "Agent") and Harvard
Industries, Inc., a Florida corporation (hereinafter "Harvard"), The
Xxxxxxxx-Xxxxxx Corporation, a New Hampshire corporation, Xxxxxx Automotive,
Inc., a Michigan corporation, Xxxxx-Albion Corporation, a Michigan corporation,
and Xxxxxxx-Xxxxxx, Inc., a Delaware corporation, Xxxxxxx-Xxxxxx Greeneville,
Inc., a Delaware corporation, Xxxxxxx-Xxxxxx Pottstown, Inc., a Delaware
corporation, Xxxxxxx-Xxxxxx Technologies, Inc., a Delaware corporation, and
Xxxxxxx-Xxxxxx Toledo, Inc., a Delaware corporation. Harvard and each of the
entities subsequently identified above are referred to herein individually as a
"Company" and collectively as the Companies.
W I T N E S S E T H
WHEREAS, the Companies, the Lenders and the Agent are party to
a Financing Agreement, dated October 4, 1996, as amended by Amendment No. 1
thereto dated December 20, 1996 (as such Financing Agreement may be further
amended from time to time, the "Financing Agreement" and capitalized terms
defined in the Financing Agreement and not otherwise defined herein having the
meanings provided therein); and
WHEREAS, the Companies have requested that the Lenders (i)
increase the Revolving Line of Credit by $10,000,000 to $100,000,000 until May
15, 1997 and (ii) reduce the Availability Reserve from $10,000,000 to
$5,000,000 until May 15, 1997; and
WHEREAS, the Companies have also requested that the Lenders
increase the Inventory Advance Percentage as provided herein until May 15,
1997; and
WHEREAS, as consideration for the Lenders agreeing to amend
the Financing Agreement as so requested by the Companies, the Companies have
agreed to pay an amendment fee of $500,000 (the "Amendment Fee") to the Agent
for the benefit of the Lenders, payable at the times and in the amounts set
forth herein; and
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WHEREAS, it is a condition precedent to the Lenders agreeing
to amend the Financing Agreement as requested by the Companies that the parties
hereto enter into this Amendment; and
WHEREAS, the Lenders have agreed with the Companies to amend
the Financing Agreement upon the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendments to the Financing Agreement. Upon the
satisfaction of the conditions in Section 3 of this Amendment relating to the
effectiveness of this Section 1, the Financing Agreement is hereby amended as
follows:
(a) Section 1 is hereby amended by:
(i) amending the definition of "AVAILABILITY RESERVE" by
deleting the reference to "$10,000,000" in the second line thereof and
replacing it with "$5,000,000 until May 15, 1997 and $10,000,000
thereafter...".
(ii) deleting the definition of "INVENTORY ADVANCE
PERCENTAGE" in its entirety and substituting in its place the following new
definition:
INVENTORY ADVANCE PERCENTAGE means (a) in the case of raw
material and finished goods Inventory, sixty percent (60%) until May 15, 1997
and fifty percent (50%) thereafter and (b) in the case of work-in-process
Inventory, thirty percent until May 15, 1997 and twenty-five percent (25%)
thereafter.
(iii) amending the definition of "LINE OF CREDIT" by deleting
the reference to "$120,000,000" in the last line thereof and replacing it with
"$130,000,000 until May 15, 1997 and $120,000,000 thereafter...".
(iv) deleting the definition of "REVOLVING LINE OF CREDIT" in
its entirety and substituting in its place the following new definition:
REVOLVING LINE OF CREDIT means the commitment of the Lenders
to make Revolving Loans pursuant to Section 3 hereof in an aggregate amount of
up to (a) $100,000,000 until May 15, 1997, and (b) $90,000,000 thereafter.
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(b) Section 3 is hereby amended by:
(i) deleting the words "...(a) in amounts up to $90,000,000
in the aggregate and...," in the eighth and ninth lines of Paragraph 1 thereof
and replacing them with the following:
"...(a) in amounts up to (i) $100,000,000 in the aggregate
until May 15, 1997 and (ii) $90,000,000 in the aggregate thereafter, and...".
SECTION 2. Representations and Warranties. Each of the
Companies hereby represents and warrants as to itself and its Subsidiaries that
(a) the execution, delivery and performance of this Amendment have been duly
authorized by all necessary corporate action on the part of such Company and
this Amendment constitutes a legal, valid and binding obligation of such
Company, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium or similar laws affecting
creditors' rights generally and to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law), (b) except
as disclosed in writing to the Agent and the Lenders, no event has occurred and
is continuing on the date hereof that constitutes a Default or would constitute
a Default after giving effect to this Amendment, (c) the representations and
warranties of such Company contained in Section 7 of the Financing Agreement
are true and correct both before and after giving effect to this Amendment,
except to the extent such representations and warranties are stated to be true
only as of a particular date, in which case such representations and warranties
were correct on and as of such date and (d) EBITDA for the two Fiscal Quarters
ending March 31, 1997 exceeded $2,000,000.
SECTION 3. Conditions to Effectiveness. The amendments in
Section 1 of this Amendment shall become effective and each Lender's commitment
to make Revolving Loans to the Companies under the Revolving Line of Credit and
to participate in the Letter of Credit Guaranty within the Revolving Line of
Credit shall increase ratably on the date (the "Effective Date") when
counterparts hereof shall have been executed by all of the Lenders, the Agent
and the Companies, and the Agent shall have received:
(a) Revolving Loan Promissory Notes substantially in the form
of Exhibit A hereto executed by each of the Companies in favor of the Lenders,
in an amount for each Lender equal to such Lender's Ratable Portion of the
Revolving Line of Credit.
(b) The Amendment Fee, for the benefit of the Lenders; and
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(c) A certificate of the secretary or an assistant secretary
of each of the Companies, dated the Effective Date, in form and substance
satisfactory to the Agent, certifying the names and true signatures of each
officer of such Company who have been authorized to execute and deliver any
document required to be executed and delivered hereunder by or on behalf of
such Company.
(d) Counsel for the Companies shall have delivered to the
Agent opinions satisfactory to the Agent containing such matters as the Agent
may reasonably request.
SECTION 4. Amendment Fee. (a) To induce the Agent and the
Lenders to enter into this Amendment and to continue to extend to the Companies
the Revolving Loans as such Revolving Loans may be increased hereby, the
Companies shall jointly and severally pay to the Agent for the Lenders an
Amendment Fee of $500,000.
(b) In the event the Agent (on behalf of itself or the other
Lenders) issues a commitment to provide the Companies with financing under
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code upon one or more of the
Companies seeking relief under chapter 11 of the United States Bankruptcy Code
(a "DIP Financing Commitment"), $375,000 of such Amendment Fee shall be
credited toward any fee which may be charged by the Agent in connection with
the issuance of such commitment. If the Agent declines to issue a DIP
Financing Commitment, $375,000 of such Amendment Fee shall be credited to the
Revolving Loan Account.
SECTION 5. Effect on the Financing Agreement. Except as
amended hereby, the Financing Agreement and the other Documents shall remain in
full force and effect.
SECTION 6. Confirmation of Guaranty. Each Company, by its
execution of this Amendment, hereby expressly confirms and agrees the
amendments set forth in this Amendment are in its best interests and that its
guaranty of the Obligations in Section 12 of the Financing Agreement remains in
full force and effect and applies to the Obligations as they may be increased
from time to time by virtue of the increase in the Revolving Line of Credit and
the reduction in the Availability Reserve effected hereby.
SECTION 7. Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together constitute one and the same
agreement.
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SECTION 8. Governing Law. The validity, interpretation and
enforcement of this Amendment shall be governed by the law of the State of New
York.
SECTION 9. Headings. Section headings in this Amendment are
included herein for the convenience of reference only and shall not constitute
part of this Amendment for any other purpose.
SECTION 10. References. References herein and in the
Documents to the "Financing Agreement", "this Agreement", "hereunder",
"hereof", or words of like import referring the Financing Agreement, shall mean
and be a reference to the Financing Agreement as amended hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their proper and duly authorized
officers as of the date set forth above. This Amendment shall take effect as
of the date set forth above after being accepted below by an officer of the
Agent and the Lenders after which, the Agent shall forward to the Company a
fully executed original for their files.
Very truly yours,
THE CIT GROUP/BUSINESS
CREDIT, INC., AS AGENT AND LENDER
By:
---------------------------------
Vice President
CONGRESS FINANCIAL CORPORATION,
AS LENDER
By:
---------------------------------
Title:
GENERAL ELECTRIC CAPITAL CORPORATION,
AS LENDER
By:
---------------------------------
Title:
XXXXXX FINANCIAL, INC., AS LENDER
By:
---------------------------------
Title:
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FINOVA CAPITAL CORPORATION, AS LENDER
By:
---------------------------------
Title:
FOOTHILL CAPITAL CORPORATION, AS LENDER
By:
---------------------------------
Title:
Read and Agreed to:
HARVARD INDUSTRIES, INC.
THE XXXXXXXX-XXXXXX CORPORATION
XXXXXX AUTOMOTIVE, INC.
XXXXX-ALBION CORPORATION
XXXXXXX-XXXXXX, INC.
XXXXXXX-XXXXXX GREENEVILLE, INC.
XXXXXXX-XXXXXX POTTSTOWN, INC.
XXXXXXX-XXXXXX TECHNOLOGIES, INC.
XXXXXXX-XXXXXX TOLEDO, INC.
By:
--------------------------------
Title:
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EXHIBIT A
FORM OF REVOLVING LOAN PROMISSORY NOTE
HARVARD INDUSTRIES, INC.
THE XXXXXXXX-XXXXXX CORPORATION,
XXXXXX AUTOMOTIVE, INC.,
XXXXX-ALBION CORPORATION,
XXXXXXX-XXXXXX, INC.,
XXXXXXX-XXXXXX GREENEVILLE, INC.,
XXXXXXX-XXXXXX POTTSTOWN, INC.,
XXXXXXX-XXXXXX TECHNOLOGIES, INC.,
XXXXXXX-XXXXXX TOLEDO, INC.
AMENDED AND RESTATED REVOLVING LOAN PROMISSORY NOTE
April 21, 1997
No. R-
$____________
FOR VALUE RECEIVED, the undersigned, HARVARD INDUSTRIES, INC.,
a Florida corporation, THE XXXXXXXX-XXXXXX CORPORATION, a New Hampshire
corporation, XXXXXX AUTOMOTIVE, a Michigan corporation, XXXXX-ALBION
CORPORATION, a Michigan corporation, XXXXXXX-XXXXXX, INC., a Delaware
corporation, XXXXXXX-XXXXXX GREENEVILLE, INC., a Delaware corporation,
XXXXXXX-XXXXXX POTTSTOWN, INC., a Delaware corporation, XXXXXXX-XXXXXX
TECHNOLOGIES, INC., a Delaware corporation, and XXXXXXX-XXXXXX TOLEDO, INC., a
Delaware corporation (the "Companies"), promise to pay to the order of [NAME OF
LENDER] as Lender (the "Lender") under a certain Financing Agreement dated
October 4, 1996 as amended by Amendment No. 1 thereto dated December 20, 1996
and Amendment No. 2 thereto dated April 21, 1997 between THE CIT GROUP/BUSINESS
CREDIT, INC., as Agent and Lender, other lenders party thereto and the
Companies (herein the "Financing Agreement") at the Agent's office located at
1211 Avenue of the Americas, New York, New York, in lawful money of the United
States of America and in immediately available funds, the principal amount of
[AMOUNT IN WORDS], or, if less, such other principal amount advanced to such
Company pursuant to Section 3, Paragraph 1 of the Financing Agreement and then
outstanding. The balance of such Revolving Loan to each such
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Company will fluctuate as a result of the daily application of the proceeds of
collections of the Accounts and the making of additional Revolving Loans to
each such Company as described in Section 3. The Revolving Loans may be
borrowed, repaid and reborrowed by the Companies in accordance with the terms
and provisions of the Financing Agreement. A final payment in an amount equal
to the outstanding aggregate balance of principal and interest remaining unpaid
in respect of the Revolving Loans made to such Company, if any, under this
Revolving Loan Promissory Note as shown on the books and records of the Agent
shall be due and payable upon any termination of the Financing Agreement.
All capitalized terms used herein shall have the meaning
provided therefor in the Financing Agreement, unless otherwise defined herein.
Each Company further promises to pay interest at such office,
in like money, on the unpaid principal amount owing hereunder in respect of
Revolving Loans made to such Company from time to time on the dates and at the
rates specified in Section 8, Paragraph 1 of the Financing Agreement.
If any payment on this Revolving Loan Promissory Note becomes
due and payable on a day other than a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day, and with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension.
This Revolving Loan Promissory Note is one of the Revolving
Loan Promissory Notes referred to in the Financing Agreement, and is subject
to, and entitled to, all provisions and benefits thereof and is subject to
optional and mandatory prepayment, in whole or in part, as provided therein.
The date and amount of the advance(s) made hereunder will be
recorded on the separate ledgers maintained by the Agent, provided that any
failure to record any such information on such ledgers shall not in any manner
affect the obligation of each Company to make payments of principal and
interest in accordance with the terms of this Revolving Loan Promissory Note.
The aggregate unpaid principal amount of all advances made pursuant hereto may
be set forth in the balance column on said schedule or such ledgers maintained
by the Agent. All such advances, whether or not so recorded, shall be due as
part of this Revolving Loan Promissory Note.
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Each Company confirms that any amount received by or paid to
the Agent in connection with the Financing Agreement and/or any balances
standing to its credit on any of its accounts on the Agent's books under the
Financing Agreement may in accordance with the terms of the Financing Agreement
be applied in reduction of this Revolving Loan Promissory Note, but no balance
or amounts shall be deemed to effect payment in whole or in part of this
Revolving Loan Promissory Note unless the Agent shall have actually charged
such account or accounts for the purposes of such reduction or payment of this
Revolving Loan Promissory Note.
Upon the occurrence of any one or more of the Events of
Default specified in the Financing Agreement or upon termination of the
Financing Agreement, all amounts then remaining unpaid on this Revolving Loan
Promissory Note may become, or be declared to be, immediately due and payable
as provided in the Financing Agreement.
Each Company and any and all guarantors, sureties and
endorsers jointly and severally waive grace, demand, presentment for payment,
notice of dishonor or default, notice of intent to accelerate, notice of
acceleration, protest and diligence in collecting.
This Note amends and restates and is a substitute for, but is
not in payment or satisfaction of, the Revolving Loan Promissory Note dated
_______, 1996 from the Companies to the Lender.
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This Revolving Loan Promissory Note shall be governed by, and
construed in accordance with, the laws of the state of New York and the
applicable federal laws of the United States.
HARVARD INDUSTRIES, INC.
THE XXXXXXXX-XXXXXX CORPORATION
XXXXXX AUTOMOTIVE, INC.
XXXXX-ALBION CORPORATION
XXXXXXX-XXXXXX, INC.
XXXXXXX-XXXXXX GREENEVILLE, INC.
XXXXXXX-XXXXXX POTTSTOWN, INC.
XXXXXXX-XXXXXX TECHNOLOGIES, INC.
XXXXXXX-XXXXXX TOLEDO, INC.
By:
--------------------------------------
Title:
Attest:
------------------------------
Title:
12
AMENDMENT NO. 2
TO
FINANCING AGREEMENT
THE CIT GROUP/BUSINESS CREDIT, INC.
AS AGENT AND LENDER
AND
CONGRESS FINANCIAL CORPORATION
GENERAL ELECTRIC CAPITAL CORPORATION
XXXXXX FINANCIAL, INC.
FINOVA CAPITAL CORPORATION
AND
FOOTHILL CAPITAL CORPORATION
AS LENDERS
AND
HARVARD INDUSTRIES, INC.,
THE XXXXXXXX-XXXXXX CORPORATION,
XXXXXX AUTOMOTIVE, INC.,
XXXXX-ALBION CORPORATION,
XXXXXXX-XXXXXX, INC.,
XXXXXXX-XXXXXX GREENEVILLE, INC.,
XXXXXXX-XXXXXX POTTSTOWN, INC.,
XXXXXXX-XXXXXX TECHNOLOGIES, INC.,
AND
XXXXXXX-XXXXXX TOLEDO, INC.
(AS BORROWERS)
DATED: APRIL 21, 1997
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DATED: April 21, 1997
AMENDMENT NO. 2 (the "Amendment"), by and among The CIT
Group/Business Credit, Inc. ("CITBC"), Congress Financial Corporation, General
Electric Capital Corporation, Xxxxxx Financial, Inc., Finova Capital Corporation
and Foothill Capital Corporation (each a "Lender" and collectively the
"Lenders"), CITBC as agent for the Lenders (the "Agent") and Harvard Industries,
Inc., a Florida corporation (hereinafter "Harvard"), The Xxxxxxxx-Xxxxxx
Corporation, a New Hampshire corporation, Xxxxxx Automotive, Inc., a Michigan
corporation, Xxxxx-Albion Corporation, a Michigan corporation, and
Xxxxxxx-Xxxxxx, Inc., a Delaware corporation, Xxxxxxx-Xxxxxx Greeneville, Inc.,
a Delaware corporation, Xxxxxxx-Xxxxxx Pottstown, Inc., a Delaware corporation,
Xxxxxxx-Xxxxxx Technologies, Inc., a Delaware corporation, and Xxxxxxx-Xxxxxx
Toledo, Inc., a Delaware corporation. Harvard and each of the entities
subsequently identified above are referred to herein individually as a "Company"
and collectively as the Companies.
W I T N E S S E T H
WHEREAS, the Companies, the Lenders and the Agent are party to
a Financing Agreement, dated October 4, 1996, as amended by Amendment No. 1
thereto dated December 20, 1996 (as such Financing Agreement may be further
amended from time to time, the "Financing Agreement" and capitalized terms
defined in the Financing Agreement and not otherwise defined herein having the
meanings provided therein); and
WHEREAS, the Companies have requested that the Lenders (i)
increase the Revolving Line of Credit by $10,000,000 to $100,000,000 until May
15, 1997 and (ii) reduce the Availability Reserve from $10,000,000 to $5,000,000
until May 15, 1997; and
WHEREAS, the Companies have also requested that the Lenders
increase the Inventory Advance Percentage as provided herein until May 15, 1997;
and
WHEREAS, as consideration for the Lenders agreeing to amend
the Financing Agreement as so requested by the Companies, the Companies have
agreed to pay an amendment fee of $500,000 (the "Amendment Fee") to the Agent
for the benefit of the Lenders, payable at the times and in the amounts set
forth herein; and
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WHEREAS, it is a condition precedent to the Lenders agreeing
to amend the Financing Agreement as requested by the Companies that the parties
hereto enter into this Amendment; and
WHEREAS, the Lenders have agreed with the Companies to amend
the Financing Agreement upon the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendments to the Financing Agreement. Upon the
satisfaction of the conditions in Section 3 of this Amendment relating to the
effectiveness of this Section 1, the Financing Agreement is hereby amended as
follows:
(a) Section 1 is hereby amended by:
(i) amending the definition of "AVAILABILITY RESERVE" by
deleting the reference to "$10,000,000" in the second line thereof and replacing
it with "$5,000,000 until May 15, 1997 and $10,000,000 thereafter...".
(ii) deleting the definition of "INVENTORY ADVANCE PERCENTAGE"
in its entirety and substituting in its place the following new definition:
INVENTORY ADVANCE PERCENTAGE means (a) in the case of raw
material and finished goods Inventory, sixty percent (60%) until May 15, 1997
and fifty percent (50%) thereafter and (b) in the case of work-in-process
Inventory, thirty percent until May 15, 1997 and twenty-five percent (25%)
thereafter.
(iii) amending the definition of "LINE OF CREDIT" by deleting
the reference to "$120,000,000" in the last line thereof and replacing it with
"$130,000,000 until May 15, 1997 and $120,000,000 thereafter...".
(iv) deleting the definition of "REVOLVING LINE OF CREDIT" in
its entirety and substituting in its place the following new definition:
REVOLVING LINE OF CREDIT means the commitment of the Lenders
to make Revolving Loans pursuant to Section 3 hereof in an aggregate amount of
up to (a) $100,000,000 until May 15, 1997, and (b) $90,000,000 thereafter.
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(b) Section 3 is hereby amended by:
(i) deleting the words "...(a) in amounts up to $90,000,000 in
the aggregate and...," in the eighth and ninth lines of Paragraph 1 thereof and
replacing them with the following:
"...(a) in amounts up to (i) $100,000,000 in the aggregate
until May 15, 1997 and (ii) $90,000,000 in the aggregate thereafter, and...".
SECTION 2. Representations and Warranties. Each of the
Companies hereby represents and warrants as to itself and its Subsidiaries that
(a) the execution, delivery and performance of this Amendment have been duly
authorized by all necessary corporate action on the part of such Company and
this Amendment constitutes a legal, valid and binding obligation of such
Company, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium or similar laws affecting
creditors' rights generally and to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law), (b) except
as disclosed in writing to the Agent and the Lenders, no event has occurred and
is continuing on the date hereof that constitutes a Default or would constitute
a Default after giving effect to this Amendment, (c) the representations and
warranties of such Company contained in Section 7 of the Financing Agreement are
true and correct both before and after giving effect to this Amendment, except
to the extent such representations and warranties are stated to be true only as
of a particular date, in which case such representations and warranties were
correct on and as of such date and (d) EBITDA for the two Fiscal Quarters ending
March 31, 1997 exceeded $2,000,000.
SECTION 3. Conditions to Effectiveness. The amendments in
Section 1 of this Amendment shall become effective and each Lender's commitment
to make Revolving Loans to the Companies under the Revolving Line of Credit and
to participate in the Letter of Credit Guaranty within the Revolving Line of
Credit shall increase ratably on the date (the "Effective Date") when
counterparts hereof shall have been executed by all of the Lenders, the Agent
and the Companies, and the Agent shall have received:
(a) Revolving Loan Promissory Notes substantially in the form
of Exhibit A hereto executed by each of the Companies in favor of the Lenders,
in an amount for each Lender equal to such Lender's Ratable Portion of the
Revolving Line of Credit.
(b) The Amendment Fee, for the benefit of the Lenders; and
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(c) A certificate of the secretary or an assistant secretary
of each of the Companies, dated the Effective Date, in form and substance
satisfactory to the Agent, certifying the names and true signatures of each
officer of such Company who have been authorized to execute and deliver any
document required to be executed and delivered hereunder by or on behalf of such
Company.
(d) Counsel for the Companies shall have delivered to the
Agent opinions satisfactory to the Agent containing such matters as the Agent
may reasonably request.
SECTION 4. Amendment Fee. (a) To induce the Agent and the
Lenders to enter into this Amendment and to continue to extend to the Companies
the Revolving Loans as such Revolving Loans may be increased hereby, the
Companies shall jointly and severally pay to the Agent for the Lenders an
Amendment Fee of $500,000.
(b) In the event the Agent (on behalf of itself or the other
Lenders) issues a commitment to provide the Companies with financing under
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code upon one or more of the
Companies seeking relief under chapter 11 of the United States Bankruptcy Code
(a "DIP Financing Commitment"), $375,000 of such Amendment Fee shall be credited
toward any fee which may be charged by the Agent in connection with the issuance
of such commitment. If the Agent declines to issue a DIP Financing Commitment,
$375,000 of such Amendment Fee shall be credited to the Revolving Loan Account.
SECTION 5. Effect on the Financing Agreement. Except as
amended hereby, the Financing Agreement and the other Documents shall remain in
full force and effect.
SECTION 6. Confirmation of Guaranty. Each Company, by its
execution of this Amendment, hereby expressly confirms and agrees the amendments
set forth in this Amendment are in its best interests and that its guaranty of
the Obligations in Section 12 of the Financing Agreement remains in full force
and effect and applies to the Obligations as they may be increased from time to
time by virtue of the increase in the Revolving Line of Credit and the reduction
in the Availability Reserve effected hereby.
SECTION 7. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together constitute one and the same agreement.
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SECTION 8. Governing Law. The validity, interpretation and
enforcement of this Amendment shall be governed by the law of the State of New
York.
SECTION 9. Headings. Section headings in this Amendment are
included herein for the convenience of reference only and shall not constitute
part of this Amendment for any other purpose.
SECTION 10. References. References herein and in the Documents
to the "Financing Agreement", "this Agreement", "hereunder", "hereof", or words
of like import referring the Financing Agreement, shall mean and be a reference
to the Financing Agreement as amended hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their proper and duly authorized
officers as of the date set forth above. This Amendment shall take effect as of
the date set forth above after being accepted below by an officer of the Agent
and the Lenders after which, the Agent shall forward to the Company a fully
executed original for their files.
Very truly yours,
THE CIT GROUP/BUSINESS
CREDIT, INC., AS AGENT AND
LENDER
By:
Vice President
CONGRESS FINANCIAL
CORPORATION, AS LENDER
By:
Title:
GENERAL ELECTRIC
CAPITAL CORPORATION, AS
LENDER
By:
Title:
XXXXXX FINANCIAL, INC., AS
LENDER
By:
Title:
19
FINOVA CAPITAL
CORPORATION, AS LENDER
By:
Title:
FOOTHILL CAPITAL
CORPORATION, AS LENDER
By:
Title:
Read and Agreed to:
HARVARD INDUSTRIES, INC.
THE XXXXXXXX-XXXXXX CORPORATION
XXXXXX AUTOMOTIVE, INC.
XXXXX-ALBION CORPORATION
XXXXXXX-XXXXXX, INC.
XXXXXXX-XXXXXX GREENEVILLE, INC.
XXXXXXX-XXXXXX POTTSTOWN, INC.
XXXXXXX-XXXXXX TECHNOLOGIES, INC.
XXXXXXX-XXXXXX TOLEDO, INC.
By:
Title:
20
EXHIBIT A
FORM OF REVOLVING LOAN PROMISSORY NOTE
HARVARD INDUSTRIES, INC.
THE XXXXXXXX-XXXXXX CORPORATION,
XXXXXX AUTOMOTIVE, INC.,
XXXXX-ALBION CORPORATION,
XXXXXXX-XXXXXX, INC.,
XXXXXXX-XXXXXX GREENEVILLE, INC.,
XXXXXXX-XXXXXX POTTSTOWN, INC.,
XXXXXXX-XXXXXX TECHNOLOGIES, INC.,
XXXXXXX-XXXXXX TOLEDO, INC.
AMENDED AND RESTATED REVOLVING LOAN PROMISSORY NOTE
April 21, 1997
No. R-
$------------
FOR VALUE RECEIVED, the undersigned, HARVARD INDUSTRIES, INC.,
a Florida corporation, THE XXXXXXXX-XXXXXX CORPORATION, a New Hampshire
corporation, XXXXXX AUTOMOTIVE, a Michigan corporation, XXXXX-ALBION
CORPORATION, a Michigan corporation, XXXXXXX-XXXXXX, INC., a Delaware
corporation, XXXXXXX-XXXXXX GREENEVILLE, INC., a Delaware corporation,
XXXXXXX-XXXXXX POTTSTOWN, INC., a Delaware corporation, XXXXXXX-XXXXXX
TECHNOLOGIES, INC., a Delaware corporation, and XXXXXXX-XXXXXX TOLEDO, INC., a
Delaware corporation (the "Companies"), promise to pay to the order of [NAME OF
LENDER] as Lender (the "Lender") under a certain Financing Agreement dated
October 4, 1996 as amended by Amendment No. 1 thereto dated December 20, 1996
and Amendment No. 2 thereto dated April 21, 1997 between THE CIT GROUP/BUSINESS
CREDIT, INC., as Agent and Lender, other lenders party thereto and the
Companies (herein the "Financing Agreement") at the Agent's office located at
1211 Avenue of the Americas, New York, New York, in lawful money of the United
States of America and in immediately available funds, the principal amount of
[AMOUNT IN WORDS], or, if less, such other principal amount advanced to such
Company pursuant to Section 3, Paragraph 1 of the Financing Agreement and then
outstanding. The balance of such Revolving Loan to each such
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Company will fluctuate as a result of the daily application of the proceeds of
collections of the Accounts and the making of additional Revolving Loans to each
such Company as described in Section 3. The Revolving Loans may be borrowed,
repaid and reborrowed by the Companies in accordance with the terms and
provisions of the Financing Agreement. A final payment in an amount equal to the
outstanding aggregate balance of principal and interest remaining unpaid in
respect of the Revolving Loans made to such Company, if any, under this
Revolving Loan Promissory Note as shown on the books and records of the Agent
shall be due and payable upon any termination of the Financing Agreement.
All capitalized terms used herein shall have the meaning
provided therefor in the Financing Agreement, unless otherwise defined herein.
Each Company further promises to pay interest at such office,
in like money, on the unpaid principal amount owing hereunder in respect of
Revolving Loans made to such Company from time to time on the dates and at the
rates specified in Section 8, Paragraph 1 of the Financing Agreement.
If any payment on this Revolving Loan Promissory Note becomes
due and payable on a day other than a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day, and with respect to payments of
principal, interest thereon shall be payable at the then applicable rate during
such extension.
This Revolving Loan Promissory Note is one of the Revolving
Loan Promissory Notes referred to in the Financing Agreement, and is subject to,
and entitled to, all provisions and benefits thereof and is subject to optional
and mandatory prepayment, in whole or in part, as provided therein.
The date and amount of the advance(s) made hereunder will be
recorded on the separate ledgers maintained by the Agent, provided that any
failure to record any such information on such ledgers shall not in any manner
affect the obligation of each Company to make payments of principal and interest
in accordance with the terms of this Revolving Loan Promissory Note. The
aggregate unpaid principal amount of all advances made pursuant hereto may be
set forth in the balance column on said schedule or such ledgers maintained by
the Agent. All such advances, whether or not so recorded, shall be due as part
of this Revolving Loan Promissory Note.
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Each Company confirms that any amount received by or paid to
the Agent in connection with the Financing Agreement and/or any balances
standing to its credit on any of its accounts on the Agent's books under the
Financing Agreement may in accordance with the terms of the Financing Agreement
be applied in reduction of this Revolving Loan Promissory Note, but no balance
or amounts shall be deemed to effect payment in whole or in part of this
Revolving Loan Promissory Note unless the Agent shall have actually charged such
account or accounts for the purposes of such reduction or payment of this
Revolving Loan Promissory Note.
Upon the occurrence of any one or more of the Events of
Default specified in the Financing Agreement or upon termination of the
Financing Agreement, all amounts then remaining unpaid on this Revolving Loan
Promissory Note may become, or be declared to be, immediately due and payable as
provided in the Financing Agreement.
Each Company and any and all guarantors, sureties and
endorsers jointly and severally waive grace, demand, presentment for payment,
notice of dishonor or default, notice of intent to accelerate, notice of
acceleration, protest and diligence in collecting.
This Note amends and restates and is a substitute for, but is
not in payment or satisfaction of, the Revolving Loan Promissory Note dated
_______, 1996 from the Companies to the Lender.
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This Revolving Loan Promissory Note shall be governed by, and
construed in accordance with, the laws of the state of New York and the
applicable federal laws of the United States.
HARVARD INDUSTRIES, INC.
THE XXXXXXXX-XXXXXX CORPORATION
XXXXXX AUTOMOTIVE, INC.
XXXXX-ALBION CORPORATION
XXXXXXX-XXXXXX, INC.
XXXXXXX-XXXXXX GREENEVILLE, INC.
XXXXXXX-XXXXXX POTTSTOWN, INC.
XXXXXXX-XXXXXX TECHNOLOGIES, INC.
XXXXXXX-XXXXXX TOLEDO, INC.
By:
Title:
Attest:
Title:
