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EXHIBIT 4.16
AMENDMENT NO. 1 TO FINANCING AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO FINANCING AND SECURITY AGREEMENT (this "Amendment")
is made as of this day of December, 1998, by and between WALBRO
CORPORATION, a corporation organized under the laws of the State of Delaware
(the "Parent"), and each corporation identified on Schedule 1.1-A attached to
and made a part of the Financing and Security Agreement dated May 29, 1998 (the
"Original Financing Agreement"), and NATIONSBANK, N.A., a national banking
association, in its capacity as both collateral and administrative agent (the
"Administrative Agent"), and each of the Lenders under the Original Financing
Agreement (collectively, the "Lenders" and individually, a "Lender").
RECITALS
A. The Parent and the Domestic Borrowers (collectively, the "Borrowers")
have applied to the Lenders for credit facilities consisting of (i) a Revolving
Credit Facility in the maximum principal amount of $125,000,000 and (ii) a
Capital Expenditure Line Facility in the maximum principal amount of $25,000,000
(collectively, the "Credit Facilities") under the provisions of the Original
Financing Agreement, as amended, restated, supplemented or otherwise modified,
the "Financing Agreement". All capitalized terms used, but not specifically
defined herein, shall have the meaning given such terms in the Financing
Agreement.
B. The Borrowers have requested that the Administrative Agent and the
Lenders enter into this Amendment for the purpose of effecting certain
modifications to the terms and conditions under which the Credit Facilities are
made available by the Lenders to the Borrowers.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, receipt of which is hereby acknowledged, the Borrowers,
the Administrative Agent and the Lenders agree as follows:
1. Definitions
(a) Section 1.1 of the Original Financing Agreement is hereby amended
to add the following defined terms:
"`Bonds' means the Town of Ossian, Indiana Variable Rate Demand
Economic Development Revenue Bonds
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(Walbro Automotive Corporation Project) Series 1993, issued by the Town of
Ossian, Indiana in the original aggregate principal amount of $9,000,000."
"`Bond Letter of Credit' means that certain irrevocable letter of
credit to be issued by the Administrative Agent in the initial stated amount
of $9,086,302, for the account of Walbro Automotive Corporation and for the
benefit of National City Bank of Indiana, as Trustee, and as security for
the Bonds as the same may be amended, restated, reissued, renewed,
supplemented, replaced or otherwise modified at any time and from time to
time."
"`Bond Letter of Credit Commitment' means the agreement of the
Administrative Agent relating to the issuance of the Bond Letter of Credit
and the repayment of the Bond Letter of Credit Obligations and the
agreements of the Lenders to purchase a participation interest in the Bond
Letter of Credit Obligations, all subject to and in accordance with the
provisions of this Agreement; and "Bond Letter of Credit Commitments" means
the collective reference to the Bond Letter of Credit Commitment of the
Administrative Agent and each of the Lenders."
"`Bond Letter of Credit Documents' means all instruments, agreements or
documents previously, simultaneously or hereafter executed and delivered by
any Borrower, any Guarantor or any other Person, singly or jointly with
another Person or Persons evidencing, securing, guarantying or in connection
with the Bonds or the Bond Letter of Credit, all as the same may be amended,
restated, supplemented, replaced or otherwise modified at any time and from
time to time."
"`Bond Letter of Credit Facility' means the facility established
pursuant to Section 2.9 (Bond Letter of Credit Facility)."
"`Bond Letter of Credit Fee' and "Bond Letter of Credit Fees" have the
meanings described in Section 2.9.2 (Bond Letter of Credit Fees)."
"`Bond Letter of Credit Fronting Fee' and "Bond Letter of Credit
Fronting Fees" have the meanings described in Section 2.9.2 (Bond Letter of
Credit Fees)."
"`Bond Letter of Credit Obligations' means the
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collective reference to all obligations of the Borrowers under and with
respect to the Bond Letter of Credit Documents."
"`Deed of Trust - Ossian' means that certain deed of trust or mortgage
dated as of December 1, 1993, between Walbro Automotive Corporation and
Xxxxxx Trust and Savings Bank and assigned to the Administrative Agent on or
about the date of this Amendment, as the same may from time to time be
amended, restated, supplemented or modified, which Deed of Trust - Ossian
grants the Administrative Agent for the benefit of the Lenders ratably and
for the benefit of the Agents, a first priority lien on that certain
property known generally as 0000 Xxxxx Xxxxx, Xxxxxx, Xxxxxxx 00000, as
security for the Bond Letter of Credit Obligations."
"`Security Agreement - Ossian' means that certain security agreement
dated as of December 1, 1993, between Walbro Automotive Corporation and
Xxxxxx Trust and Savings Bank and assigned to the Administrative Agent on or
about the date of this Amendment, as the same may from time to time be
amended, restated, supplemented or modified, which Security Agreement -
Ossian grants to the Administrative Agent for the benefit of the Lenders
ratably and for the benefit of the Agents, a first priority lien on certain
personal property more particularly therein described, as security for the
Bond Letter of Credit Obligations."
(b) Section 1.1 of the Original Financing Agreement is hereby amended
to modify the following defined terms by deleting the original definitions
thereof and substituting the following definitions:
"`Financing Documents' means at any time collectively this Agreement,
the Notes, the Security Documents, the Letter of Credit Documents, Foreign
Exchange Protection Agreement, Interest Rate Protection Agreements, the Bond
Letter of Credit Documents and any other instrument, agreement or document
previously, simultaneously or hereafter executed and delivered by any
Borrower and/or any other Person, singly or jointly with another Person or
Persons, evidencing, securing, guarantying or in connection with this
Agreement, any Note, any of the Security Documents, any of the Facilities,
and/or any of the Obligations."
"`Obligations means all present and future indebtedness, duties,
obligations, and liabilities,
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whether now existing or contemplated or hereafter arising, of any one or
more of the Borrowers to the Lenders and/or Administrative Agent and/or the
other Agents under, arising pursuant to, in connection with and/or on
account of the provisions of this Agreement, each Note, each Security
Document, Foreign Exchange Protection Agreement, Interest Rate Protection
Agreement, Bond Letter of Credit Document and/or any of the other Financing
Documents, the Loans, and/or any of the Facilities including, without
limitation, the principal of, and interest on, each Note, late charges, the
Fees, Interest Rate Exposure, Foreign Exchange Exposure, Enforcement Costs,
and prepayment fees (if any), letter of credit fees or fees charged with
respect to any guaranty of any letter of credit; also means all other
present and future indebtedness, liabilities and obligations, whether now
existing or contemplated or hereafter arising, of any one or more of the
Borrowers to the Agents and to the Lenders or their Affiliates of any nature
whatsoever regardless of whether such debts, obligations and liabilities be
direct, indirect, primary, secondary, joint, several, joint and several,
fixed or contingent; and also means any and all renewals, extensions,
substitutions, amendments, restatements and rearrangements of any such
debts, obligations and liabilities."
"`Security Documents' means collectively any assignment, pledge
agreement, security agreement, mortgage, deed of trust, deed to secure debt,
financing statement and any similar instrument, document or agreement under
or pursuant to which a Lien is now or hereafter granted to, or for the
benefit of, the Administrative Agent and/or the Lenders on any real or
personal property of any Person to secure all or any portion of the
Obligations, all as the same may from time to time be amended, restated,
supplemented or otherwise modified, including, without limitation, this
Agreement, Stock Pledge Agreements, the Assignments of Patents, the
Assignments of Trademarks, the Assignments of Purchase Agreement, the Deed
of Trust - Ossian and the Security Agreement - Ossian.
"`Stock Pledge Agreements means collective reference to each pledge,
assignment and security agreement dated the date hereof from the Parent and
from Walbro Automotive Corporation to the Administrative Agent for the
benefit of the Lenders ratably and the Agents, as the same may from time to
time be amended, restated, supplemented or otherwise
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modified covering collectively 100% of the common stock of the Domestic
Borrowers (but not the Parent) and 65% of the common stock of the Local
Currency Borrowers, and the Pledge, Assignment and Security Agreement dated
on or about the date of this Amendment, from the Parent to the
Administrative Agent for the benefit of the Lenders ratably and the Agents,
as the same may from time to time be amended, restated, supplemented or
otherwise modified, covering 80% of the common stock of U.S. Coexcell, Inc."
2. Schedules. Schedule 1.1-C to the Original Financing Agreement is hereby
amended to add as item no. 7 the Collateral Assignment of Agreement by and
between Walbro Automotive S.A., a French Corporation, and Walbro Corporation.
3. Amendments to Section 2.1 (The Revolving Credit Facility). In order to
reflect the reduction of the Total Revolving Credit Committed Amount necessary
to permit the issuance of the Bond Letter of Credit without increasing the
aggregate Commitment. Section 2.1.1(a) of the Original Financing Agreement is
hereby deleted in its entirety and replaced with the following Section 2.1.1(a):
"2.1.1 Revolving Credit Facility.
(a) Subject to and upon the provisions of this Agreement, the
Lenders collectively, but severally, establish a revolving credit
facility in favor of the Borrowers. The amount of each Lender's
commitment to lend under the Revolving Loan is herein called such
Lender's "Revolving Credit Committed Amount" and is set forth below
each Lender's signature to this Agreement. The total of each Lender's
Revolving Credit Committed Amount equals One Hundred Fifteen Million
Nine Hundred Thirteen Thousand Six Hundred and Ninety Eight Dollars
($115,913,698) and is herein called the "Total Revolving Credit
Committed Amount." the proportionate share set forth below each
Lender's signature is herein called such Lender's "Revolving Credit Pro
Rata Share." Neither the Administrative Agent nor any of the Lenders
shall be responsible for the Revolving Credit Commitment of any other
Lender, nor will the failure of any Lender to perform its obligations
under its Revolving Credit Commitment in any way relieve any other
Lender from performing its obligations under its Revolving Credit
Commitment."
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4. Unused Availability Requirement. Section 2.1.12 of the Original
Financing Agreement is hereby amended to include the following additional clause
(d):
"(d) Notwithstanding anything to the contrary contained in this Section
2.1.12, the Unused Availability requirement shall be waived until the
earlier to occur of (i) the sale by the Parent of the common stock owned by
it in U.S. Coexcell, Inc., which stock represents 80% of the total issued
and outstanding common stock and which is pledged to the Administrative
Agent for the benefit of the Lenders ratably and the Agents, pursuant to a
Stock Pledge Agreement dated on or about the date of this Amendment, or (ii)
the first anniversary of this Amendment."
5. Bond Letter of Credit. Article II of the Original Financing Agreement
is hereby amended to add the following Section 2.9:
"Section 2.9 The Bond Letter of Credit Facility.
2.9.1 Bond Letter of Credit.
Subject to and upon the provisions of the Bond Letter of Credit
Documents, the Administrative Agent has agreed to issue the Bond Letter of
Credit upon satisfaction of all conditions precedent described in Section
5.3 of this Financing Agreement, which Bond Letter of Credit will have an
expiry date no later than the Business Day preceding the Revolving Credit
Termination Date (the "Bond Letter of Credit Commitment").
2.9.2 Bond Letter of Credit Fees.
The Borrowers shall pay to the Administrative Agent, for its own
account, an issuance fee of one-quarter of one percent (1/4%) per annum of
the stated amount of the Bond Letter of Credit, without regard for
provisions contained in the Bond Letter of Credit which may give rise to a
reduction in the stated amount thereof unless such reduction has actually
occurred (each a "Bond Letter of Credit Fronting Fee" and collectively, the
"Bond Letter of Credit Fronting Fees"). The Bond Letter of Credit Fronting
Fees shall be paid upon the issuance of the Bond Letter of Credit and upon
each anniversary thereof, if any. In addition, the Borrower shall pay to the
Administrative
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Agent all other reasonable and customary negotiation, processing, transfer
or other fees in accordance with the Administrative Agent's customary
practices for the issuance of standby letters of credit. All Bond Letter of
Credit Fronting Fees and all such other additional fees are included in and
are a part of the "Fees" payable by the Borrowers under the provisions of
this Agreement and are for the sole and exclusive benefit of the
Administrative Agent and are a part of the Agent's Obligations.
In addition and in connection with the Bond Letter of Credit, the
Borrowers shall pay to the Administrative Agent for the ratable (based upon
each Lender's Revolving Credit Pro Rata Share) benefit of the Lenders a fee
(each a "Bond Letter of Credit Fee" and collectively the "Bond Letter of
Credit Fees") in an amount equal to one hundred seventy-five (175) basis
points per annum (calculated monthly in arrears on the basis of actual
number of days elapsed in a year of 360 days) of the stated amount of the
Bond Letter of Credit on the first day of the month, without regard for
provisions contained in the Bond Letter of Credit which may give rise to a
reduction in the stated amount thereof unless such reduction has actually
occurred. The accrued and unpaid portion of each Bond Letter of Credit Fee
shall be paid in arrears on the first day of each month and upon the
expiration or termination date of the Bond Letter of Credit.
2.9.3 Terms of Bond Letters of Credit.
The Bond Letter of Credit shall (a) be issued pursuant to a
completed and executed Application and Agreement for Standby Letter of
Credit in substantially the form attached hereto as Exhibit A and made a
part hereof, and (b) shall be issued in substantially the form attached
hereto as Exhibit B and made a part hereof, and (c) expire on a date not
later than the Business Day preceding the Revolving Credit Termination Date.
The Bond Letter of Credit shall be issued for the sole purpose of providing
security for the payment of principal (whether at maturity, upon
acceleration or upon purchase or redemption) and interest on the Bonds. The
stated amount of the Bond Letter of Credit issued by the Administrative
Agent pursuant to the provisions of this Agreement, plus the amount of any
unpaid Bond Letter of Credit Fees and Bond Letter of Credit Fronting Fees
accrued or scheduled to accrue thereon,
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and less the aggregate amount of all drafts drawn under or purporting to
have been drawn under the Bond Letter of Credit that have been paid by the
Administrative Agent and for which the Administrative Agent has been
reimbursed by the Borrowers in full in accordance with Section 2.9.5
(Payments of Bond Letters of Credit) and the Bond Letter of Credit
Documents, and for which the Administrative Agent has no further obligation
or commitment to restore all or any portion of the amounts drawn and
reimbursed, is herein called the "Outstanding Bond Letter of Credit
Obligations".
2.9.4 Procedures for Bond Letter of Credit.
Following satisfaction of all conditions precedent described in
Section 5.3 of the Financing Agreement, the Borrowers shall give the
Administrative Agent written notice at least five (5) Business Days prior to
the date on which the Borrowers desire the Administrative Agent to issue the
Bond Letter of Credit. Such notice shall be accompanied by a completed and
executed Application and Agreement for Standby Letter of Credit in
substantially the form attached hereto as Exhibit A specifying, among other
things: (a) the name and address of the intended beneficiary of the Bond
Letter of Credit, (b) the requested stated amount of the Bond Letter of
Credit, (c) that the Bond Letter of Credit is to be irrevocable, (d) the
Business Day on which the Bond Letter of Credit is to be issued and the date
on which the Bond Letter of Credit is to expire, (e) the terms of payment of
any draft or drafts which may be drawn under the Bond Letter of Credit, and
(f) any other terms or provisions the Borrowers desire to be contained in
the Bond Letter of Credit. Such notice shall also be accompanied by such
other information, certificates, confirmations, and other items as the
Administrative Agent may reasonably require to assure that the Bond Letter
of Credit is to be issued in accordance with the provisions of this
Agreement and the Bond Letter of Credit Documents. In the event of any
conflict between the provisions of this Agreement and the provisions of the
Bond Letter of Credit Documents, the provisions of this Agreement shall
prevail and control unless otherwise expressly provided in the Bond Letter
of Credit Documents. Upon (i) receipt of such notice and (ii) payment of all
Bond Letter of Credit Fronting Fees and all other Fees payable in connection
with the issuance of such Bond Letter of Credit, the Administrative Agent
shall
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process such notice and Application and Agreement for Standby Letter of
Credit in accordance with its customary procedures and issue such Bond
Letter of Credit on the Business Day specified in such notice, subject to
compliance by all parties with the requirements of the Bond Letter of Credit
Documents pertaining to the replacement of credit enhancement for the bonds.
2.9.5 Payment of Bond Letter of Credit Obligations.
(a) Subject to the provisions of paragraph (b) below, the
Borrowers hereby promise to pay to the Administrative Agent, ON DEMAND and
in United States Dollars, the following which are herein collectively
referred to as the "Current Bond Letter of Credit Obligations":
(i) the amount which the Administrative
Agent has paid under each draft or draw on the Bond
Letter of Credit, whether such demand be in advance of
the Administrative Agent's payment or for reimbursement
for such payment;
(ii) any and all reasonable charges and
expenses which the Administrative Agent may pay or incur
relative to the Bond Letter of Credit and/or such draws
or drafts; and
(iii) interest on the amounts described
in (i) and (ii) not paid by the Borrowers as and when
due and payable under the provisions of (i) and (ii)
above from the day the same are due and payable until
paid in full at a rate per annum equal to the then
current highest rate of interest on the Revolving Loan.
(b) Notwithstanding the provisions of paragraph (a) above,
as long as no Event of Default has occurred and is continuing, any drawing
under the Bond Letter of Credit to purchase Bonds which were tendered for
purchase by the holders thereof and which were not remarketed in a timely
fashion (each referred to herein as a "Purchase Drawing"), shall constitute
an advance to the Borrowers under the Revolving Loan and shall not be
required to be reimbursed to the Administrative Agent ON DEMAND. The
Borrowers promise to pay to the Administrative Agent the amount of each
Revolving Loan
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advance resulting from a Purchase Drawing under the Bond Letter of Credit,
with Interest payable at the times and at the rate then applicable to other
Revolving Loan advances in accordance with the terms of the Financing
Agreement, on the earliest to occur of (i) the date on which the Bonds
purchased with the proceeds of a Purchase Drawing and held by Walbro
Automotive Corporation or by the trustee for the Bonds, or its agent, for
the account of Walbro Automotive Corporation, are redeemed or cancelled
pursuant to the Bond Letter of Credit Documents, (ii) the date on which the
Bonds purchased with the proceeds of a Purchase Drawing are remarketed
pursuant to the terms of the Bond Letter of Credit Documents, (iii) the date
on which the Bond Letter of Credit is replaced by a substitute letter of
credit pursuant to the terms of the Bond Letter of Credit Documents, (iv)
the date which is 180 calendar days following the date of such Purchase
Drawing, and (v) the Revolving Credit Termination Date.
In the event that any of the payments required by this
paragraph (b) are not made when due or an Event of Default occurs and is
continuing, all of the foregoing amounts shall be immediately due and
payable ON DEMAND.
(c) In addition, the Borrowers hereby promise to pay any and
all other Bond Letter of Credit Obligations as and when due and payable in
accordance with the provisions of this Agreement and the Bond Letter of
Credit Documents. The obligation of the Borrowers to pay Current Bond Letter
of Credit Obligations and all other Bond Letter of Credit Obligations shall
be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
Borrowers or any other account party may have or have had against the
beneficiary of the Bond Letter of Credit, the Administrative Agent, any of
the Lenders, or any other Person, including, without limitation, any defense
based on the failure of any draft or draw to conform to the terms of the
Bond Letter of Credit, any draft or other document proving to be forged,
fraudulent or invalid, or the legality, validity, regularity or
enforceability of the Bond Letter of Credit, any draft or other documents
presented with any draft, this Agreement, any of the Bond Letter of Credit
Documents, or any of the other Financing Documents, all whether or not the
Administrative Agent or any of the Lenders had actual or constructive
knowledge of the
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same, and irrespective of any Collateral, security or guarantee therefor or
right of offset with respect thereto and irrespective of any other
circumstances whatsoever which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrowers for any Bond
Letter of Credit Obligations, in bankruptcy or otherwise; provided, however,
that the Borrowers shall not be obligated to reimburse the Administrative
Agent for any wrongful payment under the Bond Letter of Credit made as a
result of the Administrative Agent's willful misconduct or gross negligence.
The obligation of the Borrowers to pay the Bond Letter of Credit Obligations
shall not be conditioned or contingent upon the pursuit by the
Administrative Agent or any other Person at any time of any right or remedy
against any Person which may be or become liable in respect of all or any
part of such obligation or against any Collateral, security or guarantee
therefor or right of offset with respect thereto.
The Bond Letter of Credit Obligations shall continue to be
effective, or be reinstated, as the case may be, if at any time payment of
all or any portion of the Bond Letter of Credit Obligations is rescinded or
must otherwise be restored or returned by the Administrative Agent or any of
the Lenders upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any Person, or upon or as a result of the appointment of a
receiver, intervenor, or conservator of, or trustee or similar officer for,
any Person, or any substantial part of such Person's property, all as though
such payments had not been made.
2.9.6 Security for Bond Letter of Credit Obligations.
Notwithstanding any other provision of this Agreement, the only
Collateral for the Bond Letter of Credit Obligations shall consist of the
property covered by the Deed of Trust - Ossian and the Security Agreement -
Ossian, and the property covered by the Deed of Trust - Ossian and the
Security Agreement - Ossian shall not constitute Collateral for any of the
other Obligations.
2.9.7 Change in Law; Increased Cost.
If any change in any law or regulation or in
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the interpretation thereof by any court or other Governmental Authority
charged with the administration thereof shall either (a) impose, modify or
deem applicable any reserve, special deposit or similar requirement against
the Bond Letter of Credit issued by the Administrative Agent, or (b) impose
on the Administrative Agent or any of the Lenders any other condition
regarding this Agreement, or the Bond Letter of Credit, and the result of
any event referred to in clauses (a) or (b) above shall be to increase the
cost to the Administrative Agent of issuing, maintaining or extending the
Bond Letter of Credit or the cost to any of the Lenders of funding any
obligation under or in connection with the Bond Letter of Credit (which
increase in cost shall be the result of the Administrative Agent's
reasonable allocation of the aggregate of such cost increases resulting from
such events), then, upon demand by the Administrative Agent, the Borrowers
shall immediately pay to the Administrative Agent from time to time as
specified by the Administrative Agent, additional amounts which shall be
sufficient to compensate the Administrative Agent and the Lenders for such
increased cost, together with interest on each such amount from the date
demanded until payment in full thereof at a rate per annum equal to the then
highest current rate of interest on the Revolving Loan. A certificate as to
such increased cost incurred by the Administrative Agent and/or any of the
Lenders, submitted by the Administrative Agent to the Borrowers, shall be
conclusive, absent manifest error. Notwithstanding the foregoing, each
Lender hereby agrees to (i) use good faith efforts to change its Appropriate
Payment Office, if such change (A) would eliminate the necessity for the
payment of such additional amounts and (B) not have an adverse effect on
such Lender and (ii) treat the Borrowers in substantially the same manner as
it treats all similarly situated borrowers with respect to the requirement
to pay such additional amounts.
2.9.8 General Letter of Credit Provisions.
The Borrowers hereby instruct the Administrative Agent to pay any
draft complying with the terms of the Bond Letter of Credit irrespective of
any instructions of the Borrowers to the contrary. The Borrowers assume all
risks of the acts and omissions of the beneficiary and other users of the
Bond Letter of Credit. The Administrative Agent, the Lenders and their
respective branches, Affiliates and/or
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correspondents shall not be responsible for and the Borrowers hereby
indemnify and hold the Administrative Agent, the Lenders and their
respective branches, Affiliates and/or correspondents harmless from and
against all liability, loss and expense (including reasonable attorney's
fees and costs) incurred by the Administrative Agent, the Lenders and/or
their respective branches, Affiliates and/or correspondents relative to
and/or as a consequence of (a) any failure by the Borrowers to perform the
agreements hereunder and under any Bond Letter of Credit Document, (b) any
Bond Letter of Credit Document, this Agreement, the Bond Letter of Credit
and any draft, draw and/or acceptance under or purported to be under the
Bond Letter of Credit, (c) any action taken or omitted by the Administrative
Agent, any of the Lenders and/or any of their respective branches,
Affiliates and/or correspondents at the request of the Borrowers, other than
acts of willful misconduct and gross negligence, (d) any failure or
inability to perform in accordance with the terms of the Bond Letter of
Credit by reason of any control or restriction rightfully or wrongfully
exercised by any defacto or dejure Governmental Authority, group or
individual asserting or exercising governmental or paramount powers, and/or
(e) any consequences arising from causes beyond the control of the
Administrative Agent, any of the Lenders and/or any of their respective
branches, Affiliates and/or correspondents.
Except for willful misconduct and gross negligence, the
Administrative Agent, the Lenders and their respective branches, Affiliates
and/or correspondents, shall not be liable or responsible in any respect for
any (a) error, omission, interruption or delay in transmission, dispatch or
delivery of any one or more messages or advices in connection with the Bond
Letter of Credit, whether transmitted by cable, telegraph, mail or otherwise
and despite any cipher or code which may be employed, and/or (b) action,
inaction or omission which may be taken or suffered by it or them in good
faith or through inadvertence in identifying or failing to identify any
beneficiary or otherwise in connection with the Bond Letter of Credit.
The Bond Letter of Credit may be amended, modified or revoked only
upon the receipt by the Administrative Agent from the Borrowers and the
beneficiary (including any transferee and/or assignee of the original
beneficiary), of a written consent and
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request therefor.
If any Laws, order of court and/or ruling or regulation of any
Governmental Authority of the United States (or any state thereof) and/or
any country other than the United States permits the beneficiary of the Bond
Letter of Credit to require the Administrative Agent, the Lenders and/or any
of their respective branches, Affiliates and/or correspondents to pay drafts
under or purporting to be under the Bond Letter of Credit after the
expiration date of the Bond Letter of Credit, the Borrowers shall reimburse
the Administrative Agent and the Lenders, as appropriate, for any such
payment pursuant to provisions of Section 2.9.5 (Payments of Bond Letters of
Credit).
Except as may otherwise be specifically provided in the Bond
Letter of Credit or a Bond Letter of Credit Document, the laws of the State
of Maryland and the Uniform Customs and Practice for Documentary Credits,
1995 Revision, International Chamber of Commerce Publication No. 500 shall
govern the Bond Letter of Credit. The Laws, rules, provisions and
regulations of the Uniform Customs and Practice for Documentary Credits are
hereby incorporated by reference. In the event of a conflict between the
Uniform Customs and Practice for Documentary Credits and the laws of the
State of Maryland, the Uniform Customs and Practice for Documentary Credits
shall prevail.
2.9.9 Participations in the Bond Letter of Credit.
Each Lender hereby irrevocably authorizes the Administrative Agent
to issue the Bond Letter of Credit in accordance with the provisions of this
Agreement. As of the date the Bond Letter of Credit is opened or issued by
the Administrative Agent pursuant to the provisions of this Agreement, each
Lender shall have an undivided participating interest in (a) the rights and
obligations of the Administrative Agent under the Bond Letter of Credit, and
(b) the Outstanding Bond Letter of Credit Obligations of the Borrowers in an
amount equal to each Lender's Revolving Credit Pro Rata Share of such
Outstanding Bond Letter of Credit Obligations.
2.9.10 Payments by the Lenders to the
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Administrative Agent.
If the Borrowers fail to pay to the Administrative Agent any
Current Bond Letter of Credit Obligations as and when due and payable, the
Administrative Agent shall promptly notify each of the Lenders and shall
demand payment from each of the Lenders such Lender's Revolving Credit Pro
Rata Share of such unpaid Current Bond Letter of Credit Obligations, as
appropriate. In addition, if any amount paid to the Administrative Agent on
account of any Current Bond Letter of Credit Obligations is rescinded or
required to be restored or turned over by the Administrative Agent upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Borrower or upon or as a result of the appointment of a receiver,
intervenor, trustee, conservator or similar officer for any Borrower, or is
otherwise not indefeasibly covered by an advance under the Revolving Loan,
the Administrative Agent shall promptly notify each of the Lenders and shall
demand payment from each of the Lenders of its Revolving Credit Pro Rata
Share of its portion of the Current Bond Letter of Credit Obligations to be
remitted to such Borrower.
Each of the Lenders irrevocably and unconditionally agrees to
honor any such demands for payment under this Section and promises to pay to
the Administrative Agent's account on the same Business Day as demanded the
amount of its Revolving Credit Pro Rata Share of the Current Bond Letter of
Credit Obligations in immediately available funds, without any setoff,
counterclaim or deduction of any kind. Any payment by a Lender hereunder
shall in no way release, discharge or lessen the obligation of the Borrowers
to pay Current Bond Letter of Credit Obligations to the Administrative Agent
in accordance with the provisions of this Agreement.
The obligation of each of the Lenders to remit the amount of its
Revolving Credit Pro Rata Share of Current Bond Letter of Credit Obligations
for the account of the Administrative Agent pursuant to this Section shall
be unconditional and irrevocable under any and all circumstances and may not
be terminated, suspended or delayed for any reason whatsoever, provided that
all payments of such amounts by each of the Lenders shall be without
prejudice to the rights of each of the Lenders with respect to the
Administrative
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Agent's alleged willful misconduct. Any claim any Lender may have against
the Administrative Agent as a result of the Administrative Agent's alleged
willful misconduct may be brought by such Lender in a separate action
against the Administrative Agent but may not be used as a defense to payment
under the provisions of this Section.
No failure of any Lender to remit the amount of its Revolving
Credit Pro Rata Share of Current Bond Letter of Credit Obligations to the
Administrative Agent pursuant to this Section shall affect the obligations
of the Administrative Agent under the Bond Letter of Credit, and if any
Lender does not remit to the Administrative Agent the amount of its
Revolving Credit Pro Rata Share of Current Bond Letter of Credit Obligations
on the same day as demanded, then without limiting such Lender's obligation
to transmit funds on the same Business Day as demanded, such Lender shall be
obligated to pay, on demand of the Administrative Agent and without setoff,
counterclaim or deduction of any kind whatsoever interest on the unpaid
amount at the Federal Funds Rate for each day from the date such amount
shall be due and payable to the Administrative Agent until the date such
amount shall have been paid in full to the Administrative Agent by such
Lender."
6. Representations and Warranties.
(a) The Borrowers hereby reaffirm each of the representations and
warranties made by them in Article IV of the Original Financing Agreement.
(b) Without limiting the generality of the foregoing, the Borrowers
hereby specifically make the representations contained in Section 4.1.27 with
respect to the Assigned Local Currency Receivables originated by Walbro
Automotive S.A. (France).
(c) The Borrowers hereby represent and warrant that the Bond Letter of
Credit Documents consist only of the following, all of which are dated as of
December 1, 1993, except as specifically indicated otherwise:
(i) Trust Indenture between the Town of Ossian, Indiana and Fort Xxxxx
National Bank, as Trustee for the holders of the Bonds;
(ii) The Bonds;
(iii) Loan Agreement between the Town of Ossian, Indiana
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and Walbro Automotive Corporation;
(iv) Promissory Note by Walbro Automotive Corporation to the Town of Ossian,
Indiana;
(v) Reimbursement Agreement between Xxxxxx Trust and Savings Bank and Walbro
Corporation and Walbro Automotive Corporation;
(vi) Security Agreement by Walbro Automotive Corporation in favor of Xxxxxx
Trust and Savings Bank;
(vii) Mortgage and Security Agreement with Assignment of Rents between
Walbro Automotive Corporation and Xxxxxx Trust and Savings Bank; and
(viii) Placement Agreement between Walbro Automotive Corporation and Xxxxxx
Trust and Savings Bank, as Placement Agent; and
(ix) Remarketing Agreement between Walbro Automotive Corporation and Xxxxx
Xxxxxx Incorporated.
None of the above-listed Bond Letter of Credit Documents have been modified,
changed, supplemented, canceled, amended or otherwise altered, except as
otherwise disclosed to the Administrative Agent in writing prior to the date of
this Amendment. The Borrowers hereby confirm each of the representations and
warranties made by them in the Bond Letter of Credit Documents and further
represent and warrant that the Borrowers are in compliance with the terms
thereof, including (without limitation) all covenants and agreements relating to
the tax-exempt status of the interest payable on the Bonds. There are no
defaults or events of default outstanding under any of the Bond Letter of Credit
Documents except for any defaults which would be cured by the effectuation of
this Amendment.
7. Conditions Precedent.
(a) The effectiveness of this Amendment is subject to satisfaction of the
following conditions precedent:
(i) All conditions precedent set forth in Section 5.1 of the Original
Financing Agreement have been and remain satisfied.
(ii) The Pledge, Assignment and Security Agreement creating a Lien on
80% of the issued and outstanding capital stock in U.S. Coexcell, Inc. has been
executed and delivered
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by the Parent.
(iii) Each of the items described in Section 5.2.1 and 5.2.2 of the
Original Financing Agreement has been delivered in respect of Walbro Automotive,
S.A. (France).
(iv) The Master Receivables Subrogation Agreement between Walbro
Automotive, S.A. (France) and Walbro Corporation, together with the Collateral
Assignment of Agreement relating thereto by Walbro Corporation in favor of the
Administrative Agent have been executed and delivered to the Administrative
Agent.
(v) The Administrative Agent shall have received payment of the
Amendment Fee (hereinafter defined).
(b) The issuance of the Bond Letter of Credit by the Administrative Agent
is subject to satisfaction of the following additional conditions precedent:
(i) All of the requirements of the Bond Letter of Credit Documents
relating to the substitution of letters of credit having been satisfied.
(ii) The Deed of Trust - Ossian and the Security Agreement - Ossian,
together with any and all UCC-1 Financing Statements relating to the subject
Collateral, have been assigned by Xxxxxx Trust and Savings Bank to the
Administrative Agent for the benefit of the Lenders ratably and the Agents, as
security for the Bond Letter of Credit Obligations.
(iii) The initial Bond Letter of Credit Fee and the initial Bond Letter
of Credit Fronting Fee shall have been paid in full.
8. Sale of U.S. Coexcell, Inc. Section 6.2.6 of the Original Financing
Agreement is hereby amended to permit the Parent to sell all but not part of its
shares of common stock in U.S. Coexcell, Inc., subject to the terms of the
Pledge Assignment and Security Agreement dated on or about the date of this
Amendment, whereupon the Unused Availability requirement will be reinstated. All
proceeds of the sale of stock in U.S. Coexcell, Inc., net of reasonable and
customary costs and expenses incurred in connection therewith, shall be applied
to reduce the outstanding Revolving Loan.
9. Amendment Fee. The Borrowers shall pay to the Administrative Agent for
benefit of the Lenders ratably
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based on their respective Pro Rata Shares an amendment fee (the "Amendment Fee")
in the amount of Three Hundred Thousand Dollars ($300,000), which fee has been
fully earned and is non-refundable and shall be paid on the date of this
Amendment and as a condition precedent to the effectiveness hereof.
10. No Other Amendments. Except as specifically contemplated by the terms
of this Amendment, the Original Financing Agreement and all of the other
Financing Documents shall remain in full force and effect in accordance with
their respective terms.
11. Governing Law. This Amendment shall be construed in accordance with and
governed by the laws of the State.
12. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be considered an original for all purposes;
provided, however, that all such counterparts shall together constitute one and
the same instrument.
13. No Novation. The parties hereto covenant and agree that the execution
of this Amendment is not intended to and shall not cause or result in a novation
with respect to the Obligations or the Financing Documents and that the existing
Obligations, as evidenced by the Financing Documents are continuing, without
interruption, and have not been discharged by a new agreement.
IN WITNESS WHEREOF, the parties hereby have caused this Amendment to be
executed, sealed and delivered by their duly authorized officers.
WALBRO CORPORATION
WALBRO AUTOMOTIVE COPRORATION
WALBRO ENGINE MANAGEMENT CORPORATION
XXXXXXXXX ENGINEERED PRODUCTS, INC.
XXXXXX MANUFACTURING COMPANY
________________________ By:____________________(SEAL)
Xxxxxxx X. Xxxxx
Treasurer and Chief Financial Officer for each of
the foregoing
WITNESS: NATIONSBANK, N.A., in its
capacity as Lender
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________________________ By:____________________(SEAL)
Xxxxx X. Xxxxxx
Senior Vice President
NATIONSBANK, N.A., in its capacity as
Administrative Agent
________________________ By:___________________(SEAL)
Xxxxx X. Xxxxxx
Senior Vice President
KEY CORPORATE CAPITAL INC.
________________________ By:___________________(SEAL)
Xxxxx Xxxxx
Vice President
PNC BANK, N.A.
________________________ By:___________________(SEAL)
Xxxxxxx X. Xxxxxx
Vice President
NATIONAL CITY COMMERCIAL FINANCE, INC.
________________________ By:___________________(SEAL)
Xxxx Xxxxx
Credit Officer
BANK BOSTON, N.A.
________________________ By:___________________(SEAL)
Xxxx X. Xxxxxx
Vice President
SANWA BUSINESS CREDIT CORPORATION
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________________________ By:___________________(SEAL)
L. Xxxxx Xxxxx
Account Executive
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