SIXTH AMENDMENT TO CREDIT AGREEMENT
This Amendment is made as of the ____ day of __________, 1998, by and
between CRAGAR INDUSTRIES, INC., a Delaware corporation (the "Borrower"), and
NORWEST BUSINESS CREDIT, INC., a Minnesota corporation (the "Lender").
Recitals
The Borrower and the Lender have entered into the Credit and Security
Agreement dated as of April 14, 1995, as amended by that certain First Amendment
to Credit Agreement dated as of September 19, 1996, as amended by that certain
Second Amendment to Credit Agreement dated as of February 12, 1997, as amended
by that certain Third Amendment to Credit Agreement dated August 4, 1997, as
amended by that certain Fourth Amendment to Credit Agreement dated November 12,
1997, as amended by that certain Fifth Amendment to Credit Agreement dated
_______, 1998 as further amended pursuant to that certain Letter Agreement dated
March 9, 1998 (collectively, the "Credit Agreement").
The Lender has agreed to make certain loan advances to the Borrower
and to issue or cause to be issued certain letters of credit for the account of
the Borrower pursuant to the terms and conditions set forth in the Credit
Agreement.
The loan advances under the Credit Agreement are evidenced by the
Borrower's promissory note dated as of April 14, 1995, in the maximum principal
amount of $9,500,000.00 and payable to the order of the Lender (the "Note").
All indebtedness of the Borrower to the Lender is secured pursuant to
the terms of the Credit Agreement and all other Security Documents as defined
therein (collectively, the "Security Documents"). Xxxxxxx X. Xxxxxxxxx
("Xxxxxxxxx") has entered into that certain Support Agreement with the Borrower
and the Lender dated as of April 14, 1995.
The Borrower has requested that certain amendments be made to the
Credit Agreement which the Lender is willing to make pursuant to the terms and
conditions set forth herein.
Agreements
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, it is agreed as follows:
1. Terms used in this Amendment which are defined in the Credit
Agreement shall have the same meanings as defined therein, unless otherwise
defined herein.
2. The Credit Agreement is hereby amended as follows:
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(a) The definition of "Termination Date" is hereby deleted in
its entirety and replaced as follows:
"Termination Date" means April 30, 1998.
3. Except as explicitly amended by this Amendment, all of the terms
and conditions of the Credit Agreement shall remain in full force and effect and
shall apply to any advance or letter of credit thereunder.
4. The Borrower agrees to pay the Lender, on demand, a fully earned,
non-refundable Amendment fee in the amount of $1,000.00 per day from April 16,
1998 through and including April 30, 1998 or that date upon which the
Obligations have been repaid in full, in consideration of the execution by the
Lender of this Amendment.
5. This Amendment shall be effective upon receipt by the Lender of
an executed original hereof, together with each of the following, each in
substance and form acceptable to the Lender in its sole discretion:
(a) The Acknowledgment and Agreement of Hartzmark set forth at
the end of this Amendment, duly executed by Hartzmark.
(b) Certificate of the Secretary of the Borrower certifying as
to (i) the resolutions of the board of directors of the Borrower approving the
execution and delivery of this Amendment, (ii) the fact that the Articles of
Incorporation and Bylaws of the Borrower, which were certified and delivered to
the Lender pursuant to the Certificate of the Borrower's Secretary dated as of
April 14, 1995 in connection with the execution and delivery of the Credit
Agreement continue in full force and effect and have not been amended or
otherwise modified except as set forth in the Certificate to be delivered, and
(iii) certifying that the officers and agents of the Borrower who have been
certified to the Lender, pursuant to the Certificate of the Borrower's Secretary
dated as of April 14, 1995, as being authorized to sign and to act on behalf of
the Borrower continue to be so authorized or setting forth the sample signatures
of each of the officers and agents of the Borrower authorized to execute and
deliver this Amendment and all other documents, agreements and certificates on
behalf of the Borrower.
6. The Borrower hereby represents and warrants to the Lender as
follows:
(a) The Borrower has all requisite power and authority to
execute this Amendment and to perform all of its obligations hereunder, and this
Amendment has been duly executed and delivered by the Borrower and constitutes
the legal, valid and binding obligation of the Borrower, enforceable in
accordance with its terms.
(b) The execution, delivery and performance by the Borrower of
this Amendment have been duly authorized by all necessary corporate action and
do not (i) require any authorization, consent or approval by any governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, (ii) violate any provision of any law, rule or regulation or of any
order, writ, injunction or decree presently in effect, having applicability to
the
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Borrower, or the articles of incorporation or bylaws of the Borrower, or (iii)
result in a breach of or constitute a default under any indenture or loan or
credit agreement or any other agreement, lease or instrument to which the
Borrower is a party or by which it or its properties may be bound or affected.
(c) All of the representations and warranties contained in
Article 5 of the Credit Agreement are correct on and as of the date hereof as
though made on and as of such date, except to the extent that such
representations and warranties relate solely to an earlier date.
7. All references in the Credit Agreement to "this Agreement" shall
be deemed to refer to the Credit Agreement as amended hereby; and any and all
references in the Security Documents to the Credit Agreement shall be deemed to
refer to the Credit Agreement as amended hereby.
8. The execution of this Amendment and acceptance of any documents
related hereto shall not be deemed to be a waiver of any Default or Event of
Default or Default Period under the Credit Agreement or breach, default or event
of default under any Security Document or other document held by the Lender,
whether or not known to the Lender and whether or not existing on the date of
this Amendment.
9. The Borrower hereby absolutely and unconditionally releases and
forever discharges the Lender, and any and all participants, parent
corporations, subsidiary corporations, affiliated corporations, insurers,
indemnitors, successors and assigns thereof, together with all of the present
and former directors, officers, agents and employees of any of the foregoing,
from any and all claims, demands or causes of action of any kind, nature or
description, whether arising in law or equity or upon contract or tort or under
any state or federal law or otherwise, which the Borrower has had, now has or
has made claim to have against any such person for or by reason of any act,
omission, matter, cause or thing whatsoever arising from the beginning of time
to and including the date of this Amendment, whether such claims, demands and
causes of action are matured or unmatured or known or unknown.
10. The Borrower hereby reaffirms its agreement under the Credit
Agreement to pay or reimburse the Lender on demand for all costs and expenses
incurred by the Lender in connection with the Credit Agreement, the Security
Documents and all other documents contemplated thereby, including without
limitation all reasonable fees and disbursements of legal counsel. Without
limiting the generality of the foregoing, the Borrower specifically agrees to
pay all reasonable fees and disbursements of counsel to the Lender for the
services performed by such counsel in connection with the preparation of this
Amendment and the documents and instruments incidental hereto. The Borrower
hereby agrees that the Lender may, at any time or from time to time in its sole
discretion and without further authorization by the Borrower, make a loan to the
Borrower under the Credit Agreement, or apply the proceeds of any loan, for the
purpose of paying any such fees, disbursements, costs and expenses and the fee
required under paragraph 4 hereof.
11. This Amendment and the Acknowledgment and Agreement of Hartzmark
may be executed in any number of counterparts, each of which when so executed
and delivered
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shall be deemed an original and all of which counterparts, taken together, shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the day and year first above written.
CRAGAR INDUSTRIES, INC., a Delaware
corporation
By
-------------------------------------
Its
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NORWEST BUSINESS CREDIT, INC., a
Minnesota corporation
By
-------------------------------------
Its
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ACKNOWLEDGMENT AND AGREEMENT OF HARTZMARK
The undersigned, Xxxxxxx X. Xxxxxxxxx, having entered into that certain
Support Agreement dated as of April 14, 1995, with Cragar Industries, Inc. (the
"Borrower") and Norwest Business Credit, Inc. (the "Lender"), hereby
(i) acknowledges receipt of the foregoing Amendment; (ii) consents to the terms
and execution thereof; (iii) reaffirms his obligations to the Lender pursuant to
the terms of said Support Agreement; and (iv) acknowledges that the Lender may
amend, restate, extend, renew or otherwise modify the Credit Agreement and any
indebtedness or agreement of the Borrower, or enter into any agreement or extend
additional or other credit accommodations, without notifying or obtaining the
consent of the undersigned and without impairing the obligations of the
undersigned under said Support Agreement.
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Xxxxxxx X. Xxxxxxxxx
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