Exhibit 4.27
------------
WAIVER AND SECOND AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
THIS WAIVER AND SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
(this "Amendment") is entered into as of December 5, 2001, between Tecstar, LLC,
an Indiana limited liability company, (the "Borrower"), and Foothill Capital
Corporation, a California corporation ("Lender").
WHEREAS, Borrower and Lender are parties to an Amended and Restated Loan
and Security Agreement dated as of December 12, 2000 (as amended from time to
time, the "Loan Agreement");
WHEREAS, Borrower has notified Lender that Borrower has breached Section
7.20 for the fiscal quarter ended September 29, 2001, resulting in an Event of
Default under subsection 8.2 of the Loan Agreement (the "Specified Event of
Default"); and
WHEREAS, Borrower has requested that Lender waive the Specified Event of
Default and amend the Loan Agreement, and Lender has agreed to do so subject to
the terms and conditions contained herein;
NOW THEREFORE, in consideration of the premises and mutual agreements
herein contained, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used herein
shall have the meanings ascribed to such terms in the Loan Agreement.
2. Waivers. In reliance upon the representations and warranties of the Borrower
set forth in Section 6 below, and subject to the satisfaction of the conditions
set forth in Section 4 below, Lender hereby waives the Specified Event of
Default. Except as set forth hereinabove, the foregoing waiver shall not
constitute (a) a modification or alteration of the terms, conditions or
covenants of the Loan Agreement or any other Loan Document, (b) a waiver of any
other breach of, or any other Event of Default under, the Loan Agreement or any
other Loan Document or (c) a waiver, release or limitation upon the exercise by
the Lender of any of its rights, legal or equitable, under the Loan Agreement,
the other Loan Documents and applicable law, all of which are hereby reserved.
3. Amendment to Loan Agreement. Subject to the satisfaction of the conditions
set forth in Section 5 hereof, Section 7.20 of the Loan Agreement is hereby
amended and restated in its entirety, as follows:
"7.20 Financial Covenants.
Fail to maintain EBITDA of at least (i) $250,000 for the fiscal
quarter ending on the Sunday closest to December 31, 2001; (ii)
$1,350,000 for the fiscal quarter ending on the Sunday closest to
March 31, 2002; (iii) $1,570,000 for the fiscal quarter ending on the
Sunday closest to June 30, 2002; and (iv) $900,000 for the fiscal
quarter ending on the Sunday closest to September 30, 2002. For each
fiscal quarter ending after the Sunday closest to September 30, 2002,
Borrower shall maintain EBITDA at a level to be determined by
Foothill, which level will be based on Borrower's projections;
provided, that, notwithstanding such projections, in no event shall
Foothill be required to set EBITDA for any fiscal quarter at a level
that would be less than the level of EBITDA required for the
corresponding fiscal quarter in the immediate preceding fiscal year.
Borrower agrees to deliver to Foothill projections for each
fiscal year prior to the beginning of such fiscal year and such
projections shall be in form and substance acceptable to Foothill."
4. Ratification. This Amendment, subject to satisfaction of the conditions
provided below, shall constitute amendment to the Loan Agreement and all of the
Loan Documents as appropriate to express the agreements contained herein. In all
other respects, the Loan Agreement and the Loan Documents shall remain unchanged
and in full force and effect in accordance with their original terms.
5. Condition to Effectiveness. Subject to Section 5 below, the amendments to the
Loan Agreement set forth in this Amendment shall become effective as of the date
of this Amendment and upon the satisfaction of the following conditions
precedent in form and substance satisfactory to Lender:
(a) Amendment. Execution by the Borrower and Lender of this Amendment and
delivery thereof to Lender;
(b) Waiver Fee. Borrower shall have paid to Lender a waiver fee of
$10,000; and
(c) No Default. Except for the Specified Event of Default, no Event of
Default or event which, with the giving of notice or the passage of
time, or both, would become an Event of Default, shall have occurred
and be continuing, and, after giving effect to the amendments
contained herein, no Event of Default or event which, with the giving
of notice or the passage of time, or both, would become an Event of
Default, shall have occurred and be continuing.
6. Miscellaneous.
(a) Warranties and Absence of Defaults. In order to induce Lender to enter
into this Amendment, Borrower hereby warrants to Lender, as of the
date hereof, that:
(i) The warranties of Borrower contained in the Loan Agreement, as
herein amended, are true and correct as of the date hereof as if
made on the date hereof.
(ii) All information, reports and other papers and data heretofore
furnished to Lender by Borrower in connection with this
Amendment, the Loan Agreement and the other Loan Documents are
accurate and correct in all material respects and complete
insofar as may be necessary to give Lender true and accurate
knowledge of the subject matter thereof. Borrower has disclosed
to Lender every fact of which it is aware which would reasonably
be expected to materially and adversely affect the business,
operations or financial condition of Borrower or the ability of
Borrower to perform its obligations under this Amendment, the
Loan Agreement or under any of the other Loan Documents. None of
the information furnished to Lender by or on behalf of Borrower
contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statements
contained herein or therein not materially misleading.
(iii)No Event of Default or event which, with giving of notice or the
passage of time, or both would become an Event of Default, exists
as of the date hereof.
(b) Expenses. Borrower agrees to pay on demand all costs and expenses of
Lender (including the reasonable fees and expenses of outside counsel
for Lender) in connection with the preparation, negotiation,
execution, delivery and administration of this Amendment and all other
instruments or documents provided for herein or delivered or to be
delivered hereunder or in connection herewith. In addition, Borrower
agrees to pay, and save Lender harmless from all liability for, any
stamp or other taxes which may be payable in connection with the
execution or delivery of this Amendment or the Loan Agreement, as
amended hereby, and the execution and delivery of any instruments or
documents provided for herein or delivered or to be delivered
hereunder or in connection herewith. All obligations provided in this
Section 5 (b) shall survive any termination of this Amendment and the
Loan Agreement as amended hereby.
(c) Governing Law. This Amendment shall be a contract made under and
governed by the internal laws of the State of Illinois.
(d) Counterparts. This Amendment may be executed in any number of
counterparts, and by the parties hereto on the same or separate
counterparts, and each such counterpart, when executed and delivered,
shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Amendment.
(e) Reference to Loan Agreement. On and after the effectiveness of the
amendment to the Loan Agreement accomplished hereby, each reference in
the Loan Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import, and each reference to the Loan
Agreement in any Loan Documents, or other agreements, documents or
other instruments executed and delivered pursuant to the Loan
Agreement, shall mean and be a reference to the Loan Agreement, as
amended by this Amendment.
(f) Successors. This Amendment shall be binding upon Borrower, Lender and
their respective successors and assigns, and shall inure to the
benefit of Borrower, Lender and their respective successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized and delivered as
of the date first above written.
TECSTAR, LLC
an Indiana limited liability company
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Title Chief Financial Officer
FOOTHILL CAPITAL CORPORATION,
a California corporation
By: /s/ Xxxxxxx X. XxXxxx
------------------------------------
Title Vice President
REAFFIRMATION OF GUARANTIES
Each of the undersigned has executed and delivered to Foothill Capital
Corporation ("Lender"), a certain Guaranty dated as of December 12, 2000 (each,
as amended or otherwise modified to the date hereof, a "Guaranty"), which
Guaranties guaranty the repayment of, among other things, the indebtedness,
obligations and liabilities owing from time to time pursuant to the terms of
that certain Amended and Restated Loan and Security Agreement dated as of
December 12, 2000 between Tecstar, LLC ("Borrower") and Lender (as amended or
otherwise modified to the date hereof, the "Loan Agreement"). Unless otherwise
defined herein, capitalized terms used herein shall have the meanings ascribed
to such terms in the Loan Agreement.
Each of the undersigned hereby acknowledges receipt of a copy of that
certain Waiver and Second Amendment to Loan and Security Agreement of even date
herewith executed by Lender and Borrower ("Amendment"). Each of the undersigned
hereby reaffirms the validity of the Guaranty executed by such party and all of
the undersigned's obligations under each such Guaranty, in each case after
giving effect to the transactions contemplated by said Amendment. The terms and
conditions of each such Guaranty remain in full force and effect.
Dated as of this 5 day of December, 2001.
STARCRAFT AUTOMOTIVE GROUP,
an Indiana corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Title President
NATIONAL MOBILITY CORPORATION,
an Indiana corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Title President
IMPERIAL AUTOMOTIVE GROUP, INC.,
an Indiana corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Title President
STARCRAFT CORPORATION,
an Indiana corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Title President
TECSTAR, INC.,
an Indiana corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Title Chief Financial Officer
