AMENDMENT NO. 1
TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment") is entered into as of May 10,
2001, by and among HARVARD INDUSTRIES, INC., a Delaware corporation ("Harvard"
or the "Borrower Representative"), XXXXXXX-XXXXXX, INC., a Delaware corporation
("DJI"), HARVARD TRANSPORTATION CORPORATION, a Michigan corporation ("Harvard
Transportation"), XXXXXXX-XXXXXX GREENEVILLE, INC., a Delaware corporation
("DJG"), POTTSTOWN PRECISION CASTING, INC., a Delaware corporation
("Pottstown"), HARVARD INDUSTRIES RISK MANAGEMENT, INC., a Delaware corporation
("Harvard Risk Management"), XXXXXXX-XXXXXX TOLEDO, INC., a Delaware corporation
("DJT"), XXXXXX AUTOMOTIVE, INC., a Michigan corporation ("Xxxxxx"),
XXXXX-ALBION CORPORATION, a Michigan corporation ("Xxxxx-Albion"), and THE
XXXXXXXX-XXXXXX CORPORATION, a New Hampshire corporation ("Xxxxxxxx-Xxxxxx")
(DJI, Harvard Transportation, DJG, Pottstown, Harvard Risk Management, DJT,
Harman, Hayes Albion, Xxxxxxxx-Xxxxxx together with the Borrower Representative,
jointly and severally referred to herein as the "Borrowers" and individually as
a "Borrower"); GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation (in
its individual capacity, "GE Capital"), for itself, as Lender, and as Agent for
Lenders, and the other Lenders signatory hereto.
BACKGROUND
Borrowers, Agent and Lenders are parties to a Credit Agreement dated as
of September 30, 1999 (as amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement") pursuant to which Agent and Lenders
provide Borrowers with certain financial accommodations.
Borrowers have requested that Agent and Lenders waive various Events of
Default that have occurred and make certain amendments to the Credit Agreement,
and Agent and Lenders are willing to do so on the terms and conditions hereafter
set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of Borrowers by Agent
and Lenders, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. All capitalized terms not otherwise defined herein
shall have the meanings given to them in the Credit Agreement.
2. Amendment to Credit Agreement. Subject to satisfaction of the
conditions precedent set forth in Section 3 below, the Credit Agreement is
hereby amended as follows:
(a) The references to the amount "Fifty Million Dollars"
($50,000,000) in the first Whereas clause, in Annex A in the definitions of
"Commitments" and "Revolving Loan
Commitment" and on Annex J are deleted and replaced with the amount "Forty-five
Million Dollars" ($45,000,000).
(b) Section 1.1(a)(i) is amended by (i) deleting the
fourth sentence, and (ii) amending the sixth sentence thereof in its entirety to
provide as follows:
"Until the Commitment Termination Date, Borrowers may borrow,
repay and reborrow under this Section 1.1(a) provided that the amount
of any Revolving Credit Advance to be made at any time shall not exceed
the Borrowing Availability at such time."
(c) Section 1.3(b)(i) is amended by amending the first
sentence thereof in its entirety to provide as follows:
"If at any time the outstanding balance of the
Revolving Loan exceeds the lesser of (A) the Maximum
Amount and (B) the Borrowing Base, Borrowers shall
immediately repay the aggregate outstanding Revolving
Credit Advances to the extent required to eliminate
such excess.
(d) Section 1.5(a) is amended in its entirety to provide
as follows:
"1.5 Interest and Applicable Margins.
(a) Borrowers shall pay interest to Agent, for the
ratable benefit of Lenders in accordance with the
various Loans being made by each Lender, in arrears
on each applicable Interest Payment Date, at the
following rates: with respect to the Revolving Credit
Advances, the Index Rate plus 1.50% per annum or, at
the election of Borrower Representative, the
applicable LIBOR Rate plus 3.00% per annum, based on
the aggregate Revolving Credit Advances outstanding
from time to time."
(e) Sections 1.6 and 1.7 are hereby amended in their
entirety to provide as follows:
1.6 Eligible Accounts.
All of the Accounts owned by each Borrower and
reflected in the most recent Borrowing Base
Certificate delivered by Borrower Representative to
Agent shall be "Eligible Accounts" for purposes of
this Agreement, except any Account to which any of
the exclusionary criteria set forth below applies.
Agent shall have the right to establish or modify
Reserves against Eligible Accounts from time to time
in its reasonable credit judgment. In addition, Agent
reserves the right, at any time and from time to time
after the Closing Date, to adjust any of the criteria
set forth below, to establish new criteria and to
adjust advance rates with respect to Eligible
Accounts, in its reasonable credit judgment. Eligible
Accounts shall not include any Account of any
Borrower:
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(a) that does not arise from the sale of goods or the
performance of services by such Borrower in the
ordinary course of its business;
(b) (i) upon which such Borrower's right to receive
payment is not absolute or is contingent upon the
fulfillment of any condition whatsoever or (ii) as to
which such Borrower is not able to bring suit or
otherwise enforce its remedies against the Account
Debtor through judicial process or (iii) if the
Account represents a progress billing consisting of
an invoice for goods sold or used or services
rendered pursuant to a contract under which the
Account Debtor's obligation to pay that invoice is
subject to such Borrower's completion of further
performance under such contract or is subject to the
equitable lien of a surety bond issuer;
(c) to the extent that any defense, counterclaim,
setoff or dispute is asserted as to such Account;
(d) that is not a true and correct statement of bona
fide indebtedness incurred in the amount of the
Account for merchandise sold to or services rendered
and accepted by the applicable Account Debtor;
(e) with respect to which an invoice, reasonably
acceptable to Agent in form and substance, has not
been sent to the applicable Account Debtor;
(f) that (i) is not owned by such Borrower or (ii) is
subject to any right, claim, security interest or
other interest of any other Person, other than Liens
in favor of Agent, on behalf of itself and Lenders;
(g) that arises from a sale to any director, officer,
other employee or Affiliate of any Credit Party, or
to any entity that has any common officer or director
with any Credit Party;
(h) that is the obligation of an Account Debtor that
is the United States government or a political
subdivision thereof, or any state, county or
municipality or department, agency or instrumentality
thereof unless Agent, in its sole discretion, has
agreed to the contrary in writing and such Borrower,
if necessary or desirable, has complied with respect
to such obligation with the Federal Assignment of
Claims Act of 1940, or any applicable state, county
or municipal law restricting assignment thereof;
(i) that is the obligation of an Account Debtor
located in a foreign country other than Canada
(excluding the province of Newfoundland, the
Northwest Territories and the Territory of Nunavit)
unless payment thereof is assured by a letter of
credit assigned and delivered to Agent, reasonably
satisfactory to Agent as to form, amount and issuer,
provided that the Accounts in respect of such sales
otherwise comply with all of the other criteria set
forth in this definition of Eligible Accounts and
represent sales not in excess of $5,000,000 in the
aggregate at any one time outstanding;
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(j) to the extent such Borrower or any Subsidiary
thereof is liable for goods sold or services rendered
by the applicable Account Debtor to such Borrower or
any Subsidiary thereof but only to the extent of the
potential offset;
(k) that arises with respect to goods that are
delivered on a xxxx-and-hold, cash-on-delivery basis
or placed on consignment, guaranteed sale or other
terms by reason of which the payment by the Account
Debtor is or may be conditional;
(1) that is in default; provided, that, without
limiting the generality of the foregoing, an Account
shall be deemed in default upon the occurrence of any
of the following:
(i) the Account is not paid within the
earlier of: 60 days following its due date or 90 days
following its original invoice date;
(ii) the Account Debtor obligated upon such
Account suspends business, makes a general assignment
for the benefit of creditors or fails to pay its
debts generally as they come due; or
(iii) a petition is filed by or against any
Account Debtor obligated upon such Account under any
bankruptcy law or any other federal, state or foreign
(including any provincial) receivership, insolvency
relief or other law or laws for the relief of
debtors;
(m) that is the obligation of an Account Debtor if
50% or more of the Dollar amount of all Accounts
owing by that Account Debtor are ineligible under the
other criteria set forth in this Section 1-6;
(n) as to which Agent's Lien thereon, on behalf of
itself and Lenders, is not a first priority perfected
Lien;
(o) as to which any of the representations or
warranties in the Loan Documents are untrue;
(p) to the extent such Account is evidenced by a
judgment, Instrument or Chattel Paper;
(q) that is payable in any currency other than
Dollars; or
(r) that is otherwise unacceptable to Agent in its
reasonable credit judgment exercised in a manner
which is customary either in the commercial finance
industry or in the lending practices of the Agent
and/or the Lenders.
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Further, in respect of Tooling Accounts, no Tooling
Account shall be an Eligible Account to the extent it
has not been approved in accordance with the standard
procedures for parts approval.
1.7 Eligible Inventory. All of the Inventory owned by
each Borrower and reflected in the most recent
Borrowing Base Certificate delivered by Borrower
Representative to Agent shall be "Eligible Inventory"
for purposes of this Agreement, except any Inventory
to which any of the exclusionary criteria set forth
below applies. Agent shall have the right to
establish or modify Reserves against Eligible
Inventory from time to time in its reasonable credit
judgment. In addition, Agent reserves the right, at
any time and from time to time after the Closing
Date, to adjust the criteria set forth below, to
establish new criteria and to adjust advance rates
with respect to Eligible Inventory, in its reasonable
credit judgment. Eligible Inventory shall not include
any Inventory of any Borrower that:
(a) is not owned by such Borrower free and clear of
all Liens and rights of any other Person (including
the rights of a purchaser that has made progress
payments and the rights of a surety that has issued a
bond to assure such Borrower's performance with
respect to that Inventory), except the Liens in favor
of Agent, on behalf of itself and Lenders, and
Permitted Encumbrances in favor of landlords and
bailees to the extent permitted in Section 5.9 hereof
(subject to Reserves established by Agent in
accordance with Section 5.9 hereof);
(b) (i) is not located on premises owned, leased or
rented by such Borrower and set forth in Disclosure
Schedule (3.2), or (ii) is stored at a leased
location, unless Agent has given its prior consent
thereto and unless either (x) a reasonably
satisfactory landlord waiver has been delivered to
Agent, or (y) Reserves reasonably satisfactory to
Agent have been established with respect thereto or
(iii) is stored with a bailee or warehouseman unless
a reasonably satisfactory, acknowledged bailee letter
has been received by Agent and Reserves reasonably
satisfactory to Agent have been established with
respect thereto, or (iv) is located at an owned
location subject to a mortgage in favor of a lender
other than Agent unless a reasonably satisfactory
mortgagee waiver has been delivered to Agent, or (v)
is located at any site if the aggregate book value of
Inventory at any such location is less than $100,000;
(c) is placed on consignment or is in transit;
(d) is covered by a negotiable document of title,
unless such document has been delivered to Agent with
all necessary endorsements, free and clear of all
Liens except those in favor of Agent and Lenders;
(e) is excess, obsolete, unsalable, shopworn,
seconds, damaged or unfit for sale;
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(f) consists of display items or packing or shipping
materials, manufacturing supplies or replacement
parts (other than raw materials), goods present
outside of the United States of America, goods
returned or rejected by the Account Debtor of such
Borrower (other than goods that are undamaged and
resalable in the ordinary course of business), goods
to be returned to the suppliers of such Borrower or
goods in transit to third parties (other than the
agents or warehouses of such Borrower);
(g) consists of goods which have been returned by the
buyer;
(h) is not of a type held for sale in the ordinary
course of such Borrower's business;
(i) is not subject to a first priority lien in favor
of Agent on behalf of itself and Lenders;
(j) breaches any of the representations or warranties
pertaining to Inventory set forth in the loan
Documents;
(k) consists of any costs associated with
"freight-in" charges;
(1) consists of Hazardous Materials or goods that can
be transported or sold only with licenses that are
not readily available;
(m) is not covered by casualty insurance reasonably
acceptable to Agent; or
(n) is otherwise unacceptable to Agent in its
reasonable credit judgment exercised in a manner
which is customary either in the commercial finance
industry or in the lending practices of the Agent
and/or the Lenders.
(f) A new Subsection 1.9(e) is added which provides as
follows;
"(e) On May 31, 2001, Borrowers shall pay to GE
Capital for its own account a special advance fee of
$50,000 (which fee may be charged to the Loan
Account); provided, however, that if the Obligations
have been irrevocably paid in full in cash and this
Agreement has been terminated on or prior to May 31,
2001, then the payment of such fee shall
automatically be waived."
(g) Section 1.10 is amended by amending the second
sentence thereof in its entirety to provide as follows;
"For purposes of computing interest and Fees and
determining Borrowing Availability as of any date,
all payments shall be deemed received on the Business
Day of receipt of immediately available funds
therefor in the Collection Account prior to 2:00 p.m.
New York time."
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(h) Section 1.11 (b) is amended by adding the following
at the end thereof:
", even if the amount of such charges would exceed
Borrowing Availability at such time."
(i) A new Section 1.17 is added which provides as
follows:
"1.17 Single-Loan. All Loans to or for the benefit of
any Borrower and all of the other Obligations of such
Borrower arising under this Agreement and the other
Loan Documents shall constitute one general
obligation of that Borrower secured, until the
Termination Date, by all of the Collateral."
(j) Section 2.2(d) is amended in its entirety to provide
as follows:
"(d) After giving effect to any Advance (or the
incurrence of any Letter of Credit Obligations),
the outstanding principal amount of the aggregate
Revolving Loan would exceed the lesser of the
Borrowing Base and the Maximum Amount.
(k) Section 4.1 (b) is amended in its entirety to
provide as follows:
"(b) Each Credit Party executing this Agreement
hereby agrees that until the Termination Date, it
shall deliver to Agent or to Agent and Lenders, as
required, the various Collateral Reports (including
Borrowing Base Certificates in form and substance
satisfactory to Agent) at all times, to the Persons
and in the manner set forth in Annex F.
(1) Section 5.9 is hereby amended in its entirety to
provide as follows;
"5.9 Landlords' Agreements, Mortgagee Agreements and
Bailee Letters. Each Credit Party shall obtain a
landlord's agreement, mortgagee agreement or bailee
letter, as applicable, from the lessor of each leased
property, mortgagee of owned property or bailee with
respect to any warehouse, processor or converter
facility or other location where Collateral is stored
or located, which agreement or letter shall contain a
waiver or subordination of all Liens or claims that
the landlord, mortgagee or bailee may assert against
the Collateral at that location, and shall otherwise
be satisfactory in form and substance to Agent. With
respect to such locations or warehouse space leased
or owned as of January 1, 2001 and thereafter, if
Agent has not received a landlord or mortgagee
agreement or bailee letter for such location, any
Borrower's Eligible Inventory at that location shall,
in Agent's discretion, be excluded from the Borrowing
Base or be subject to such Reserves as may be
established by Agent in its reasonable credit
judgment. After the Closing Date, no real property or
warehouse space shall be leased by any Credit Party
and no Inventory shall be shipped to a processor or
converter under arrangements established after the
Closing Date without the prior written consent of
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Agent (which consent, in Agent's discretion, may be
conditioned upon the exclusion from the Borrowing
Base of Eligible Inventory at that location or the
establishment of Reserves acceptable to Agent) or,
unless and until a satisfactory landlord agreement or
bailee letter, as appropriate, shall first have been
obtained with respect to such location. Each Credit
Party shall timely and fully pay and perform its
obligations under all leases and other agreements
with respect to each leased location or public
warehouse where any Collateral is or may be located.
If any Credit Party proposes to acquire a fee
ownership interest in Real Estate after the Closing
Date, it shall first provide to Agent a mortgage or
deed of trust, environmental audits, mortgage title
insurance commitment, survey, and if required by
Agent, supplemental casualty insurance, all in form
and substance reasonably satisfactory to Agent."
(m) A new Subsection 8.1 (n) is added which provides as
follows:
"(n) Failure by Hilco Capital to purchase from GE
Capital on or prior to May 31, 2001 a junior
participation in the Revolving Credit Advances of at
least $5,000,000 on terms and conditions, and
pursuant to documentation, satisfactory to GE Capital
in its sole discretion."
(n) Annex A is amended as follows:
(i) the following defined terms are added in the
appropriate alphabetical order:
"Amendment No. 1" means the
Amendment No. 1 to Credit Agreement dated as
of May 10, 2001 by and among Borrowers,
Lenders and Agent.
"Amendment No. 1 Effective Date" means the
date all of the conditions set forth in
Section 3 of Amendment No. 1 have been
satisfied.
"Borrowing Base" means, as of any date of
determination by Agent, from time to time,
an amount equal to the sum at such time of:
(a) up to 85% of the aggregate book value of
each Borrower's Eligible Accounts; and
(b) up to 60% of the aggregate book value of
each Borrower's Eligible Inventory (other
than Eligible Tooling Inventory or Eligible
Inventory consisting of work in process)
valued at the lower of cost (determined on
a first-in, first-out basis) or market; and
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(c) up to 25% of the aggregate book value of
each Borrower's Eligible Inventory
consisting of work in process valued at the
lower of cost (determined on a first-in,
first-out basis) or market; and
(d) up to the lesser of (i) 33% of the
aggregate book value of Eligible Tooling
Inventory valued at the lower of cost
(determined on a first-in, first-out basis)
or market, and (ii) $300,000; and
(e) up to the Special Advance Amount.
In no event shall the amount of Revolving
Credit Advances based upon clauses (b), (c)
and (d) exceed $15,000,000 in the aggregate.
"Eligible Accounts" has the meaning ascribed
to it in Section 1.6.
"Eligible Inventory" has the meaning
ascribed to it in Section 1.7.
"Eligible Tooling Inventory" means Eligible
Inventory consisting of tooling, valued at
an amount equal to the costs associated with
the production of tooling, not classified as
fixed assets, which have not been billed but
have an open purchase order for delivery at
a future date no later than one (1) year
from initial cost.
"Tooling Accounts" means any Account arising
from the obligation of an Account Debtor to
reimburse a Borrower for the costs to such
Borrower of manufacturing tooling to be used
by such Borrower to manufacture Inventory to
be sold to that Account Debtor.
(ii) the following defined terms are amended in
their entirety to provide as follows:
"Applicable Revolver Index Margin" means the
per annum interest rate margin payable in
addition to the Index Rate applicable to the
Revolving Loan as set forth in Section
1.5(a).
"Applicable Revolver LIBOR Margin" means the
per annum interest rate payable in addition
to the LIBOR Rate applicable to the
Revolving Loan, as set forth in Section
1.5(a).
"Borrowing Availability" means as of any
date of determination as to all Borrowers,
the lesser of (i) the Maximum Amount and
(ii) the Borrowing Base, in each case, less
the sum of the aggregate Revolving Loans
then outstanding.
"Reserves" means (a) reserves established by
Agent from time to time against Eligible
Inventory pursuant to Section 5.9, (b)
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reserves established pursuant to Section
5.4(c) and (c) such other reserves against
Eligible Accounts, Eligible Inventory or
Borrowing Availability which Agent may, in
its reasonable credit judgment, establish
from time to time. Without limiting the
generality of the foregoing, Reserves
established to ensure the payment of accrued
Interest Expenses or Indebtedness shall be
deemed to be a reasonable exercise of
Agent's credit judgment.
"Special Advance Amount" means (i) from the
Amendment No. 1 Effective Date through June
30, 2001, $10,000,000, (ii) from July 1,
2001 through July 31, 2001, $9,500,000,
(iii) from August 1, 2001 through August 31,
2001, $9,000,000, (iv) from September 1,
2001 through September 29, 2001, $8,500,000,
and (v) thereafter, $0.
(o) Annex B is hereby amended by amending clause (a) in
its entirety to provide as follows:
(a) Issuance. Subject to the terms and
conditions of the Agreement, Agent and Revolving
Lenders agree to incur, from time to time prior to
the Commitment Termination Date, upon the request of
Borrower Representative on behalf of the applicable
Borrower and for such Borrower's account, Letter of
Credit Obligations by causing Letters of Credit to be
issued by a bank or other legally authorized Person
selected by or acceptable to Agent in its sole
discretion (each, an "L/C Issuer") for such
Borrower's account and guaranteed by Agent; provided,
that if the L/C Issuer is a Revolving Lender, then
such Letters of Credit shall not be guaranteed by
Agent but rather each Revolving Lender shall, subject
to the terms and conditions hereinafter set forth,
purchase (or be deemed to have purchased) risk
participations in all such Letters of Credit issued
with the written consent of Agent, as more fully
described in paragraph (b)(ii) below. The aggregate
amount of all such Letter of Credit Obligations shall
not at any time exceed the lesser of (i) FIFTEEN
MILLION DOLLARS ($15,000,000) (the "L/C Sublimit")
and (ii) the Maximum Amount less the aggregate
outstanding principal balance of the Revolving Credit
Advances, and (iii) the Borrowing Base less the
aggregate outstanding principal balance of the
Revolving Credit Advances. No such Letter of Credit
shall have an expiry date that is more than one year
following the date of issuance thereof and neither
Agent nor Revolving Lenders shall be under any
obligation to incur Letter of Credit Obligations in
respect of, or purchase risk participations in, any
Letter of Credit having an expiry date that is later
than the Commitment Termination Date.
(p) Annex F is hereby amended by amending clauses (a) and
(b) in their entirety to provide as follows:
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(a) To Agent, upon its request, and in any event
no less frequently than 15 days after the end of each
Fiscal Month (together with a copy of all or any part
of the following reports requested by any Lender in
writing after the Closing Date), each of the
following reports, each of which shall be prepared by
the Borrower Representative as of the last day of the
immediately preceding Fiscal Month or the date 2 days
prior to the date of any such request:
(i) with respect to Borrowers, a Borrowing
Base Certificate, in each case accompanied
by such supporting detail and documentation
as shall be requested by Agent in its
reasonable discretion;
(ii) with respect to each Borrower, a
summary of Inventory by location and type
with a supporting perpetual Inventory
report, in each case accompanied by such
supporting detail and documentation as shall
be requested by Agent in its reasonable
discretion; and
(iii) with respect to each Borrower, a
monthly trial balance showing Accounts
outstanding aged from invoice date as
follows: 1 to 30 days, 31 to 60 days, 61 to
90 days, 91 to 120 days and 121 days or
more, accompanied by such supporting detail
and documentation as shall be requested by
Agent in its reasonable discretion.
(b) To Agent, no later than 11:00 a.m. (New York
time) on each Business Day (together with a copy of
all or any part of such delivery requested by any
Lender in writing after the Closing Date), collateral
reports with respect to each Borrower, including all
additions and reductions (cash and non-cash) with
respect to Accounts of each Borrower, in each case
accompanied by such supporting detail and
documentation as shall be requested by Agent in its
reasonable discretion each of which shall be prepared
by the Borrower Representative;
(q) Notwithstanding any provision to the Loan Agreement
to the contrary, effective the Amendment No. 1 Effective Date, Borrowers shall
not be permitted to obtain any new LIBOR Loans, continue any existing LIBOR Loan
as another LIBOR Loan, nor convert any existing Index Rate Loans into LIBOR
Loans.
(r) Agent shall reduce the amount of Eligible Inventory
and Eligible Accounts as previously calculated based upon information provided
by Borrower Representative by the sum of up to $5,000,000 representing (i) the
value of Accounts and Inventory of Trim Trends Canada, Ltd. which are included
in the calculation of Eligible Inventory and Eligible Accounts notwithstanding
the fact that Agent does not have a first priority perfected security interest
in such assets, and (ii) the potential offset available to General Motors
pursuant to the Transaction
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Supply Agreement dated as of January 1, 2001 among Harvard, Pottstown and
General Motors and all related agreements to which General Motors is a party.
3. Conditions of Effectiveness. This Amendment shall become effective
upon satisfaction of the following conditions precedent: Agent shall have
received (i) four (4) copies of this Amendment executed by Borrowers and Lenders
and (ii) such other certificates, instruments, documents, agreements and
opinions of counsel as may be required by Agent or its counsel, each of which
shall be in form and substance satisfactory to Agent and its counsel.
4. Representations and Warranties. Each Borrower hereby represents and
warrants as follows:
(a) This Amendment and the Credit Agreement, as amended
hereby, constitute legal, valid and binding obligations of Borrowers and are
enforceable against Borrowers in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, each
Borrower hereby reaffirms all covenants, representations and warranties made in
the Credit Agreement to the extent the same are not amended hereby and agree
that all such covenants, representations and warranties shall be deemed to have
been remade as of the effective date of this Amendment.
(c) No Event of Default or Default has occurred and is
continuing or would exist after giving effect to this Amendment, except for any
failure by Borrowers prior to the date of this Amendment to comply with (i)
Section 4.1(a) of the Credit Agreement with respect to Paragraphs (d) and (f) of
Annex E and (ii) Section 6.10 of the Credit Agreement with respect to Paragraphs
(b), (c) and (d) of Annex G to the Credit Agreement.
(d) No Borrower has any defense, counterclaim or offset
with respect to the Credit Agreement.
5. Effect on the Credit Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference
in the Credit Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import shall mean and be a reference to the Credit Agreement as
amended hereby.
(b) Except as specifically amended herein, the Credit
Agreement, and all other documents, instruments and agreements executed and/or
delivered in connection therewith, shall remain in full force and effect, and
are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, operate as a waiver of any right, power or remedy of Agent
or Lenders, nor constitute a waiver of any provision of the Credit Agreement, or
any other documents, instruments or agreements executed and/or delivered under
or in connection therewith.
6. Governing Law. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the laws of the State of
New York.
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7. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
8. Counterparts; Facsimile. This Amendment may be executed by the
parties hereto in one or more counterparts, each of which shall be deemed an
original and all of which when taken together shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written above.
HARVARD INDUSTRIES, INC.
XXXXXXX-XXXXXX, INC.
HARVARD TRANSPORTATION
CORPORATION
XXXXXXX-XXXXXX GREENVILLE, INC.
POTTSTOWN PRECISION CASTING, INC.
HARVARD INDUSTRIES RISK
MANAGEMENT, INC.
XXXXXXX-XXXXXX TOLEDO, INC.
XXXXXX AUTOMOTIVE, INC.
XXXXX-ALBION CORPORATION
THE XXXXXXXX-XXXXXX CORPORATION
By /s/ XXXXX X. X. XXXXX
--------------------------------
Name: Xxxxx L. B. Price
Title:VP Controller & Treasurer
of each of the foregoing
corporations
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By
--------------------------------
Name:
Title:
13
