Exhibit 10.17.2
FIRST AMENDMENT TO THE CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO THE CREDIT AGREEMENT (this "Amendment"), effective
as of December 1, 2001 (the "Effective Date"), is entered into by and between
Amerigon Incorporated, a California corporation (the "Company"), and Big Beaver
Investments LLC, a Delaware limited liability company (the "Lender").
RECITALS
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A. The Company and the Lender are parties to that certain Credit Agreement
dated as of September 20, 2001 (the "Credit Agreement") pursuant to which the
Lender has extended to the Company the principal amount of One Million Five
Hundred Thousand Dollars ($1,500,000).
B. The Company desires to obtain an additional loan from the Lender in the
principal amount of One Million Dollars ($1,000,000) (the "Additional Loan")
pursuant to the terms and conditions of the Credit Agreement, as amended by this
Amendment.
C. In addition, the Company and the Lender desire to make certain
amendments to the Credit Agreement as provided herein.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined in this Amendment, capitalized
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terms used herein shall have the meanings assigned to them in the Credit
Agreement.
2. Amendments To Credit Agreement.
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(a) The following definitions as set forth in Section 1.01 of the
Credit Agreement shall be amended in its entirety as follows:
"FINAL MATURITY DATE" means the earlier to occur of: (i) March 1, 2002;
(ii) the occurrence of a Trigger Event; or (iii) acceleration of the Loan
pursuant to Section 6.02.
"LOAN DOCUMENTS" means the Credit Agreement dated as of September 20, 2001
(the "Credit Agreement") between the Company and the Lender, the First
Amendment to the Credit Agreement effective as of December 1, 2001 (the
"Amendment") between the Company and the Lender, the Note, the Collateral
Documents (as each of the foregoing may be restated, amended, modified,
renewed, or extended from time to time), and all other certificates,
documents, agreements and instruments delivered to the Lender under or in
connection with the Loan.
"MARKET PRICE" shall mean the lowest price per share of Common Stock
determined by: (i) the average closing bid price of the Common Stock, for
ten (10) consecutive Business Days ending on November 27, 2001 (the "Market
Price Determination Date"), as reported by Nasdaq, if the Common Stock is
traded on the Nasdaq SmallCap Market; (ii) the average last reported sale
price of the Common Stock, for ten (10) consecutive Business Days ending on
the Market Price Determination Date, as reported by the primary exchange on
which the Common Stock is traded, if the Common Stock is traded on a
national securities exchange, or by Nasdaq, if the Common Stock is traded
on the Nasdaq National Market; (iii) the average closing bid price or the
last reported sale price, as the case may be, for the ninety (90) calendar
days ending on the Market Price Determination Date; or (iv) a price not to
exceed $1.15 per share.
(b) Section 2.01 of the Credit Agreement shall be amended in its
entirety as follows:
SECTION 2.01 LOAN. Subject to the terms and conditions of the Loan
Documents, including satisfaction of the conditions set forth under Article
III of this Agreement, the Lender agrees to make a term loan to the Company
in an aggregate principal amount of Two Million Five Hundred Thousand
Dollars ($2,500,000) (the "Loan"), to be advanced to the Company in
multiple distributions as follows (each a "Loan Advance"): (i) the first
distribution of Five Hundred Thousand Dollars ($500,000) is to be advanced
on the Closing Date (the "First Loan Advance"); (ii) the second
distribution of Two Hundred Fifty-Thousand Dollars ($250,000) is to be
advanced on October 1, 2001 or such other later date as mutually agreed
between the parties (the "Second Loan Advance"); (iii) the third
distribution of Two Hundred Fifty-Thousand Dollars ($250,000) is to be
advanced within two (2) Business Days after the Company satisfies the
conditions set forth in Section 3.04, but in no event earlier than October
1, 2001 or such other later date as mutually agreed between the parties
(the "Third Loan Advance"); (iv) the fourth distribution of Five Hundred
Thousand Dollars ($500,000) is to be advanced on November 1, 2001 or such
other later date as mutually agreed between the parties (the "Fourth Loan
Advance"); and (v) the final distribution or distributions of an aggregate
of One Million Dollars ($1,000,000) are to be advanced on or before January
24, 2002 or such other later date as mutually agreed between the parties
(the "Final Loan Advance"). Whenever any Loan Advance hereunder shall be
stated to be made on a day other than a Business Day, then such Loan
Advance shall be made on the next succeeding Business Day.
The first paragraph of Section 2.04 of the Credit Agreement shall be
amended in its entirety as follows (provided that the second paragraph of
Section 2.04 shall remain applicable without modification or amendment):
SECTION 2.04 INTEREST. The Company hereby promises to pay, on the date
of any prepayment of the Loan and at the Final Maturity Date, interest on
the unpaid principal amount of the Loan from the date of each Loan
distribution until
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maturity thereof at a rate equal to ten percent (10%) per annum from the
Closing Date through December 1, 2001, and at a rate equal to twelve and
one-half percent (12 1/2%) per annum after December 1, 2001 for all unpaid
principal amounts under the Loan.
Section 2.12 of the Credit Agreement shall be amended in its entirety
as follows:
SECTION 2.12. WARRANT. Concurrently with the execution of this
Agreement, and in consideration of the Lender's agreement to make the Loan
to the Company, the Company will issue to the Lender a warrant to purchase
an amount of the Common Stock of the Company equal to thirty (30%) of the
principal amount of the Loan (i.e. $750,000) divided by the exercise price
as set forth in the warrant, and on the terms and conditions set forth in
the warrant.
Section 3.02(c) of the Credit Agreement shall be amended in its
entirety as follows:
OFFICER'S CERTIFICATE. The Lender shall have received certificates duly
executed by a disinterested Responsible Officer of the Company dated the
date of each Loan Advance certifying in such detail as the Lender may
reasonably request to the fulfillment of the conditions specified in
Sections 3.02(a) and 3.02(b).
Section 7.04(a) of the Credit Agreement shall be amended in its
entirety as follows:
COSTS AND EXPENSES. The Company agrees to pay on demand: (i) the
reasonable out-of-pocket costs and expenses of the Lender and any of its
Affiliates, and the reasonable fees and disbursements of counsel to the
Lender and its Affiliates, in connection with the Loan, including the
negotiation, preparation, execution, delivery and administration of the
Loan Documents and any amendments, modifications or waivers of the terms
thereof, and (ii) all reasonable costs and expenses of the Lender and its
Affiliates, and fees and disbursements of counsel, in connection with (A)
any Default, (B) the enforcement or attempted enforcement of, and
preservation of any rights or interests under, the Loan Documents, (C) any
out-of-court workout or other refinancing or restructuring or any
bankruptcy or insolvency case or proceeding, and (D) the preservation of
and realization upon any of the Collateral. Without limiting the
foregoing, the Lender shall have the right, but not the obligation, to
automatically deduct from each Loan Advance any and all of the foregoing
costs and expenses of the Lender and any of its Affiliates incurred or
reasonably expected to be incurred in connection with the Loan;
accordingly, the amount of such Loan Advance actually disbursed to the
Company may be less of such deducted amounts.
Section 7.07 of the Credit Agreement shall be amended in its entirety
as follows:
SECTION 7.07 BINDING EFFECT; ASSIGNMENT. This Agreement shall become
effective when it shall have been executed by the Company and the Lender
and thereafter shall be binding upon, inure to the benefit of and be
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enforceable by the Company, the Lender and their respective permitted
successors and permitted assigns. The Company shall not have the right to
assign its rights or Obligations or any interest herein or therein without
the prior written consent of the Lender. The Lender reserves the right
freely to sell, assign, transfer or grant participations in all or any
portion of the Lender's rights and obligations hereunder and under the
other Loan Documents to any Person. In the event of any such assignment,
the assignee shall be deemed a "Lender" for all purposes of the Loan
Documents with respect to the rights and obligations assigned to it, and
the obligations of the Lender so assigned shall thereupon terminate. The
Company shall, from time to time upon request of the Lender, enter into
such amendments to the Loan Documents and execute and deliver such other
documents as shall be necessary to effect any such grant or assignment.
The Company agrees that in connection with any such grant or assignment,
the Lender may deliver to the prospective participant or assignee financial
statements and other relevant information relating to the Company (subject
to such Person entering into a confidentiality agreement with the Company
on terms reasonably satisfactory to the Company).
The following provisions shall be added to the end of Article III of
the Credit Agreement:
SECTION 3.06 CONDITIONS PRECEDENT TO THE FINAL LOAN ADVANCE. The
obligation of the Lender to make the Final Loan Advance shall be subject to
the satisfaction of each of the following conditions precedent before or
concurrently on the date of the Final Loan Advance (the "Amendment Closing
Date"):
(a) COMPLIANCE. The Company shall have performed and complied
with all conditions precedent set forth in Sections 3.01 and 3.02.
(b) DOCUMENTS. The Lender shall have received each of the
following in form and substance satisfactory to it:
(i) the Amendment duly executed by the Company;
(ii) the duly executed Amended and Restated Convertible
Promissory Note (the "Amended Note");
(iii) an opinion of legal counsel to the Company dated as
of the Amendment Closing Date;
(iv) the duly executed Amended and Restated Bridge Loan
Warrant (the "Amended Warrant");
(v) the Third Amendment to the Investors' Rights Agreement
executed by the Company and Westar Capital II, LLC ("Westar");
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(vi) an estoppel certificate dated the Amendment Closing
Date and executed by Westar, the Company, each disinterested member of
the Board of Directors of the Company (the "Board"), and each
disinterested executive officer of the Company;
(vii) evidence that (A) all authorizations or approvals of
any governmental agency or authority, and approvals or consents of any
other Person, required in connection with the execution, delivery and
performance of the Loan Documents shall have been obtained and (B) a
certificate of the Secretary or other appropriate officer of the
Company, dated the Amendment Closing Date, certifying (1) copies of
its Charter Documents and the resolutions and other actions taken or
adopted by disinterested members of the Board or shareholders of the
Company authorizing the execution, delivery and performance of the
Loan Documents and such other documents referenced herein, (2) the
incumbency, authority and signatures of each officer of the Company
authorized to execute and deliver the Loan Documents and act with
respect thereto, (3) the disinterested members of the Board have
acknowledged that the Loan Documents were negotiated at arm's length
and the consideration therefor is fair and based in part upon advice
of Xxxx Capital, (4) the disinterested members of the Board have
waived any right to re-characterize the Loan Documents and
transactions contemplated therein as equity participation, and (5) the
disinterested members of the Board have approved the form and
substance of this Amendment, the Amended Note and the Amended Warrant,
and the transactions contemplated therein; and
(viii) a certificate duly executed by a disinterested
Responsible Officer of the Company dated the Amendment Closing Date
certifying in such detail as the Lender may reasonably request to the
fulfillment of all conditions contained in this Section 3.06.
3. Representations And Warranties. The Company hereby represents and
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warrants to the Lender as follows:
(a) No Default or Event of Default has occurred and is continuing.
(b) There has been no material breach of any term or condition of any
of the Loan Documents.
(c) All representations and warranties of the Company contained in
the Credit Agreement are true and correct and apply with full force and effect
to this Amendment.
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(d) All Collateral Documents apply with full force and effect to this
Amendment and the Additional Loan.
(e) The execution, delivery and performance by the Company of this
Amendment have been duly authorized by all necessary corporate and other action
and do not and will not require any registration with, consent or approval of,
notice to or action by, any Person in order to be effective and enforceable. The
Credit Agreement as amended by this Amendment constitutes the legal, valid and
binding obligations of the Company, enforceable against it in accordance with
its respective terms, without defense, counterclaim or offset, except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors' rights
generally, and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.
(f) The Company is entering into this Amendment on the basis of its
own investigation and for its own reasons, without reliance upon the Lender or
any other Person.
4. Reservation Of Rights. The Company acknowledges and agrees that the
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execution and delivery by the Lender of this Amendment shall not be deemed to
create a course of dealing or otherwise obligate the Lender to forbear or
execute similar amendments under the same or similar circumstances in the
future. The Company further acknowledges and agrees that, except as expressly
provided in the Loan Documents, neither the Lender nor any of its Affiliates
have any commitment or other undertaking to advance any additional funds to the
Company or its Affiliates.
5. Prior Warrant and Note. Upon due execution of the Amended Note and
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the Amended Warrant by the Company and receipt thereof by the Lender, the
Amended Note and the Amended Warrant shall supercede and replace the Convertible
Promissory Note and the Bridge Loan Warrant, each dated September 20, 2001,
issued by the Company to the Lender in connection with the Credit Agreement.
6. Miscellaneous.
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(a) Except as herein expressly amended by this Amendment, all terms,
covenants and provisions of the Credit Agreement are and shall remain in full
force and effect and all references therein to such Credit Agreement shall
henceforth refer to the Credit Agreement as amended by this Amendment. This
Amendment shall be deemed incorporated into, and a part of, the Credit
Agreement.
(b) This Amendment, together with the Credit Agreement, contains the
entire and exclusive agreement of the parties hereto with reference to the
matters discussed herein and therein. This Amendment supersedes all prior drafts
and communications with respect thereto. This Amendment may not be amended
except in accordance with the provisions of Section 7.01 of the Credit
Agreement.
(c) This Amendment shall become effective when it shall have been
executed by the Company and the Lender and thereafter shall be binding upon,
inure to the benefit of and be enforceable by the Company, the Lender and their
respective permitted successors and
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permitted assigns. The Company shall not have the right to assign its rights or
Obligations or any interest herein or therein without the prior written consent
of the Lender. The Lender reserves the right freely to sell, assign, transfer or
grant participations in all or any portion of the Lender's rights and
obligations hereunder and under the other Loan Documents to any Person.
(d) This Amendment shall be governed by and construed in accordance
with the law of the State of California.
(e) This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument.
(f) Each of the parties hereto understands and agrees that this
Amendment (and any other document required herein) may be delivered by any party
thereto either in the form of an executed original or an executed original sent
by facsimile transmission to be followed promptly by mailing of a hard copy
original, and that receipt by the Lender of a facsimile transmitted document
purportedly bearing the signature of the Company shall bind the Company with the
same force and effect as the delivery of a hard copy original. Any failure by
the Lender to receive the hard copy executed original of such document shall not
diminish the binding effect of receipt of the facsimile transmitted executed
original of such document which hard copy page was not received by the Lender.
[Remainder of page intentionally left blank; signatures follow]
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IN WITNESS WHEREOF, the parties hereto have duly executed this First
Amendment to the Credit Agreement effective as of the Effective Date.
THE COMPANY:
AMERIGON INCORPORATED, a California
corporation
By: ______________________________
Name: ____________________________
Title: ___________________________
THE LENDER:
BIG BEAVER INVESTMENTS LLC, a
Delaware limited liability company
By: ______________________________
Name: ____________________________
Title: ___________________________
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