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EXHIBIT 10.2
AMENDMENT NO. 1
TO
FINANCING AGREEMENT
The CIT Group/Business Credit, Inc.
as Agent and Lender
and
Congress Financial Corporation
General Electric Capital Corporation
Xxxxxx Financial, Inc.
Finova Capital Corporation
and
Foothill Capital Corporation
as Lenders
and
Harvard Industries, Inc.,
The Xxxxxxxx-Xxxxxx Corporation,
Xxxxxx Automotive, Inc.,
Xxxxx-Albion Corporation,
Xxxxxxx-Xxxxxx, Inc.,
Xxxxxxx-Xxxxxx, Greeneville, Inc.,
Xxxxxxx-Xxxxxx Pottstown, Inc.,
Xxxxxxx-Xxxxxx Technologies, Inc.,
and
Xxxxxxx-Xxxxxx Toledo, Inc.
(as Borrowers)
Dated: December __, 1996
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DATED: December __, 1996
AMENDMENT NO. 1 (the "Amendment"), by and among The CIT Group/Business
Credit, Inc. ("CITBC"), Congress Financial Corporation, General Electric
Capital Corporation, Xxxxxx Financial, Inc., Finova Capital Corporation and
Foothill Capital Corporation (each a "Lender" and collectively the "Lenders"),
CITBC as agent for the Lenders (the "Agent") and Harvard Industries, Inc., a
Florida corporation (hereinafter "Harvard"), the Xxxxxxxx-Xxxxxx Corporation, a
New Hampshire corporation, Xxxxxx Automotive, Inc., a Michigan corporation,
Xxxxx-Albion Corporation, a Michigan corporation and Xxxxxxx-Xxxxxx, Inc., a
Delaware corporation, Xxxxxxx-Xxxxxx Greeneville, Inc., a Delaware corporation,
Xxxxxxx-Xxxxxx Pottstown, Inc., a Delaware corporation, Xxxxxxx-Xxxxxx
Technologies, Inc., a Delaware corporation, and Xxxxxxx-Xxxxxx Toledo, Inc., a
Delaware corporation. Harvard and each of the entities subsequently identified
above are referred to herein individually as a "Company" and collectively as
the Companies.
W I T N E S S E T H
WHEREAS, the Companies, the Lenders and the Agent are party to a
Financing Agreement, dated October 4, 1996 (as such Agreement is amended hereby
and as it may be futher amended, the "Financing Agreement" and capitalized
terms defined in the Financing Agreement and not otherwise defined herein
having the meanings provided therein); and
WHEREAS, the Companies have requested that the Lenders amend Section 7,
Paragraph 11 of the Financing Agreement so as to reduce the EBITDA required to
be maintained by the Companies for various periods during the terms of the
Financing Agreement; and
WHEREAS, the Companies have requested that the lenders amend the
Financing Agreement in certain other respects as provided herein; and
WHEREAS, it is a condition precedent to the Lenders agreeing to amend
the Financing Agreement as requested by the Companies the (i) the Availability
Reserve be increased from $5,000,000 to $10,000,000 and (ii) that the parties
hereto enter into this Amendment; and
WHEREAS, as consideration for the Lenders agreeing to amend the
Financing Agreement as so requested by the Companies, the Companies have agreed
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to pay an amendment fee of $100,000 (the "Amendment Fee") to the Agent for the
benefit of the Lenders; and
WHEREAS, the Lenders have agreed with the Companies to amend the
Financing Agreement upon the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendments to the Financing Agreement. Upon the satisfaction
of the conditions in Section 3 of this Amendment relating to the effectiveness
of this Section 1, the Financing Agreement is hereby amended as follows:
(a) Section 1 is hereby amended by:
(i) amending the definition of "AVAILABILITY" by deleting the word
"Issuer" in clause (y) thereof and substituting in its place "Issuing Bank";
(ii) deleting in its entirety the definition of "AVAILABILITY RESERVE"
and substituting in its place the following new definition:
"AVAILABILITY RESERVE" means, as to all of the Companies in the
aggregate, at any date, $10,000,000 plus (i) such additional amounts as the
Agent, in the exercise of its sole discretion exercised in a commercially
reasonable manner, may from time to time establish against the Availability, and
(ii) such additional amounts as may be added thereto pursuant to Section 7,
Paragraph 6(b)(ii) or Section 11, Paragraph 2 hereof.
(iii) deleting in its entirety the definition of "DISBURSEMENT ACCOUNT";
(iv) adding, in the appropriate alphabetical order, the following
defined term:
"AGENT FEE LETTER" means the fee letter dated October 4, 1996 issued by
the Agent to, and accepted by, the Companies."
(b) Section 3 is hereby amended by:
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(i) amending Paragraph 3 by deleting the reference to "Section 7,
Paragraph 8" in the penultimate sentence thereof and substituting in its place
"Section 7, Paragraph 9";
(ii) amending Paragraph 8 by inserting the word "Revolving" immediately
before "Line of Credit" in clause (b) thereof.
(c) Section 6, Paragraph 4 is hereby amended by deleting the "this
Paragraph 6" in the clause (b) thereof and substituting in its place "this
Paragraph 4".
(d) Section 7 is hereby amended by:
(i) amending Paragraph (2)(dd) to delete the following language from
the first sentence:
"(including, without limitation, all Intellectual Property as defined in
the Intellectual Property Security Agreement)";
(ii) amending Paragraph 10 to insert, immediately after the word
"Agent", the words "and the Required Lenders";
(iii) deleting Paragraph 11 in its entirety and substituting in its
place the following;
"11. Until termination of this Financing Agreement and payment and
satisfaction in full of all Obligations hereunder, the Companies shall
maintain EBITDA of not less than:
1. $1,000,000 for the Fiscal Quarter ending December 31, 1996;
2. $11,000,000 for the two Fiscal Quarters ending March 31, 1997;
3. $32,000,000 for the three Fiscal Quarters ending June 30, 1997;
4. $48,000,000 for the Fiscal Year ending September 30, 1997;
5. $70,000,000 for the Fiscal Year ending September 30, 1998; and
6. $75,000,000 thereafter."
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(e) Section 8, Paragraph 1 is hereby amended by inserting,
immediately after "Agent" in clause (a) of the first sentence thereof, the words
"and/or the Lenders".
(f) Section 12, Paragraph 4 is hereby amended by deleting the
word "Each" at the beginning of the first sentence thereof and inserting in its
place the phrase "Except for the limited purpose set forth in Paragraph 6 of
this Section 12, each..."
(g) Section 14, Paragraph 6 is hereby amended by inserting,
immediately after "The Companies" in the first sentence thereof, the words ",
the Agent and the Lenders".
(h) Section 15, Paragraph 10 is hereby amended by inserting,
immediately before "Line of Credit" in clause (c) of the first sentence
thereof, the word "Revolving".
SECTION 2. Representations and Warranties. Each of the
Companies hereby represents and warrants as to itself and its Subsidiaries that
(a) the execution, delivery and performance of this Amendment have been duly
authorized by all necessary corporate action on the part of such Company and
this Amendment constitutes a legal, valid and binding obligation of such
Company, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium or similar laws affecting
creditors' rights generally and to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law), (b) no
Default or Event of Default will result from this Amendment and (c) the
representations and warranties of such Company contained in Section 7 of the
Financing Agreement are true and correct as of the date hereof as though made on
such date, except to the extent such representations and warranties relate to an
earlier date, in which case such representations and warranties were correct on
and as of such earlier date.
SECTION 3. Conditions to Effectiveness. The amendments in
Section 1 of this Amendment shall become effective on the date (the "Effective
Date") when counterparts hereof shall have been executed by the Required Lenders
(provided that Section 1(h) of this Amendment shall become effective upon
execution by all the Lenders), the Agent and the Companies, and the Agent shall
have received:
(a) The Amendment Fee, for the benefit of the Lenders; and
(b) A certificate of the secretary or an assistant secretary of
each of the Companies, dated the Effective Date, in form and substance
satisfactory to the
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Agent, certifying the names and true signatures of each officer of such Company
who have been authorized to execute and deliver any document required to be
executed and delivered hereunder by or on behalf of such Company.
SECTION 4. Effect on the Financing Agreement. Except as
amended hereby, the Financing Agreement and the other Documents shall remain in
full force and effect.
SECTION 5. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together constitute one and the same agreement.
SECTION 6. Governing Law. The validity, interpretation and
enforcement of this Amendment shall be governed by the law of the State of New
York.
SECTION 7. Headings. Section headings in this Amendment are
included herein for the convenience of reference only and shall not constitute
part of this Amendment for any other purpose.
SECTION 8. References. References herein and in the Documents
to the Financing Agreement are to the Financing Agreement as amended hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their proper and duly authorized officers as of the
date set forth above. This Amendment shall take effect as of the date set
forth above after being accepted below by an officer of the Agent and the
Lenders after which, the Agent shall forward to the Company a fully executed
original for their files.
Very truly yours,
THE CIT GROUP/BUSINESS
CREDIT, INC., as Agent and
Lender
By:/s/ Xxxxx Xxxxxxxx
----------------------------
Vice President
CONGRESS FINANCIAL
CORPORATION, as Lender
By:/s/ Xxxxxxx Xxxxxxx
----------------------------
Vice President
GENERAL ELECTRIC
CAPITAL CORPORATION, as
Lender
By:
----------------------------
Title:
XXXXXX FINANCIAL, INC., as
Lender
By:/s/ Xxx Xxxxxxxxx
----------------------------
Vice President
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FINOVA CAPITAL
CORPORATION, AS LENDER
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Title: Xxxxxx Xxxxxx
Vice President
FOOTHILL CAPITAL
CORPORATION, AS LENDER
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Title: Assistant Vice President
Read and Agreed to:
HARVARD INDUSTRIES, INC.
THE XXXXXXXX-XXXXXX CORPORATION
XXXXXX AUTOMOTIVE, INC.
XXXXX-ALBION CORPORATION
XXXXXXX-XXXXXX, INC.
XXXXXXX-XXXXXX GREENVILLE, INC.
XXXXXXX-XXXXXX POTTSTOWN, INC.
XXXXXXX-XXXXX TECHNOLOGIES, INC.
XXXXXXX-XXXXXX TOLEDO, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Title: Vice President Finance
Chief Finance Operations
