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EXHIBIT 2
WAIVER, CONSENT AND FIRST AMENDMENT
TO SENIOR SUBORDINATED LOAN DOCUMENTS
This WAIVER, CONSENT AND FIRST AMENDMENT TO SENIOR SUBORDINATED LOAN
DOCUMENTS ("First Amendment") is made and entered into as of April 17, 2001
between CLARION TECHNOLOGIES, INC., a Delaware corporation (the "Company"), and
its subsidiaries party hereto (the Company and its subsidiaries are referred to
individually as a "Loan Party" and collectively as the "Loan Parties"), jointly
and severally, as borrowers; and XXXXXXX XXXXX MEZZANINE CAPITAL FUND III, L.P.,
a Delaware limited partnership ("WBMCF"), Xxxxxx X. Xxxxxx Living Trust dated
3/1/94, Xxxxxxx Xxxxxxx and Xxxxxx Xxxxxxx, as the lenders.
R E C I T A L S
A. Pursuant to that certain Senior Subordinated Loan Agreement dated as of
July 21, 2000 (the "Loan Agreement") between the Loan Parties and WBMCF, WBMCF
purchased a promissory note of the Loan Parties having a principal amount of
$30,000,000, and the Company issued to WBMCF a warrant to purchase 2,847,797
shares of the Company's Common Stock.
B. Prior to the date hereof, the Loan Parties defaulted on certain
obligations to the Agent and the Senior Lenders under a Credit Agreement by and
among LaSalle Bank National Association, a national banking association
corporation, Bank One Michigan, a Michigan banking corporation, and certain
financial institutions dated February 29, 2000, as amended by that certain First
Amendment to Credit Agreement dated June 30, 2000, and that certain Second
Amendment to Credit Agreement dated July 21, 2000.
C. In connection with such defaults, the Loan Parties, Agent and the Senior
Lenders are entering into a Third Amendment to Credit Agreement of even date
herewith (the "Third Amendment to Senior Loan Agreement"), pursuant to which
Senior Lenders, among other things, are agreeing to convert a portion of their
revolving loan commitments to Loan Parties into a single maturity loan, increase
the amount of their revolving loan commitments to Loan Parties to an aggregate
amount of $17,000,000, reschedule principal payments and maturity of the loans
thereunder, amend certain financial covenants contained therein, and to waive
existing defaults specifically enumerated therein.
D. On the date hereof, the Loan Parties are in default under certain
obligations to WBMCF under the Loan Agreement and have requested, and WBMCF has
agreed to waive such existing defaults.
E. The Loan Parties have further requested, and WBMCF has further agreed,
to amend selected provisions of the Loan Agreement and Registration Rights
Agreement and to make provision for the purchase of additional senior
subordinated notes of the Loan Parties by WBMCF and the additional lenders set
forth in Schedule 2.1 of the Loan Agreement, as amended hereby, having an
aggregate principal amount of $3,000,000, all upon the terms and conditions as
hereinafter set forth.
F. In connection with such additional senior subordinated notes, the
Company has agreed to issue warrants to purchase shares of the Company's Common
Stock to WBMCF and the additional lenders set forth in Schedule 2.1 of the Loan
Agreement, as amended hereby, and
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WBMCF has further agreed to provide consent to amend that certain Amended and
Restated Certificate of Designations of Clarion Technologies, Inc. dated April
6, 2001 (the "Preferred Stock Amendments"), upon the terms and conditions as
hereinafter set forth.
G. Based upon the foregoing recitals, and without waiving any rights or
remedies other than those expressly waived herein, Lender is willing to amend
the terms of the Senior Subordinated Loan Documents under the terms and
conditions expressly set forth herein.
A G R E E M E N T S
NOW, THEREFORE, in consideration of the agreements set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Incorporation of Recitals. The foregoing recitals are incorporated
herein by reference and made a part of this First Amendment.
2. Definitions. All capitalized terms used herein without definition shall
have the meanings given to them in the Loan Agreement, as amended by this First
Amendment.
3. Defaults. The Loan Parties hereby acknowledge, confirm and agree that
certain events have occurred and continue to occur as set forth on Schedule 1
hereto (collectively, the "Existing Defaults"), each of which presently
constitutes an Event of Default or Potential Event of Default and, subject to
the terms of the Intercreditor Agreement, entitles, or would entitle, WBMCF to
exercise certain rights and remedies under the Loan Agreement.
4. Waiver. In reliance upon the representations, warranties and covenants
of the Loan Parties contained in this Agreement and subject to the terms and
conditions of this Agreement and any documents or instruments executed in
connection herewith, Lender hereby agrees to waive any and all Existing
Defaults. The Loan Parties understand and agree that the waiver contained in
this Section 4 relates only to the Existing Defaults, which occurred prior to
and are existing as of, the date of this First Amendment, and that said waiver
shall not be construed as Lender's waiver of, or agreement to waive, any Events
of Default or Potential Events of Default arising hereafter under the Loan
Agreement or any other Senior Subordinated Loan Document. Except as limited
and/or modified by this First Amendment and by the documents executed and
delivered in connection herewith, the Loan Documents shall be deemed to be in
full force and effect during the period of the Agreement, and all provisions of
the Loan Agreement relating to the rights and remedies of Lender shall continue
to be in effect until such time as all Obligations have been paid in full.
5. Amendment of the Loan Agreement. Subject to the Loan Parties'
performance of their obligations to Lender hereunder on the date hereof, the
parties hereto agree to amend the terms of the Loan Agreement as follows:
(a) The following definitions shall be added to Section 1.1 of the
Loan Agreement in the proper alphabetical order:
"'Deferred Interest Period' shall mean the period commencing on
January 1, 2001 and ending on the earlier of June 30, 2002 or the date
that Senior Lenders are paid in full."
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"`Deferred Interest Portion' shall have the meaning set forth in
Section 2.3(e)(ii) hereof."
"`First Amendment' shall mean that certain Waiver, Consent and
First Amendment to Senior Subordinated Loan Documents dated as of
April 17, 2001 between the Loan Parties, as borrowers, and WBMCF,
Xxxxxx X. Xxxxxx Living Trust dated 3/1/94, Xxxxxxx Xxxxxxx and Xxxxxx
Xxxxxxx, as lenders, as the same may be amended, supplemented,
restated or otherwise modified from time to time."
"`First Amendment Closing Date' shall be deemed to mean the date
of the First Amendment if and when the conditions for effectiveness of
the First Amendment are satisfied as provided therein."
"`First Amendment Loans' shall have the meaning set forth in
Section 2.1 hereof."
"`First Amendment Senior Subordinated Notes' shall have the
meaning set forth in Section 2.1 hereof."
"`First Amendment Warrants' shall mean the warrants issued by the
Company to WBMCF, Xxxxxx X. Xxxxxx Living Trust dated 3/1/94, Xxxxxxx
Xxxxxxx and Xxxxxx Xxxxxxx in form and substance substantially
identical to Exhibit D-2 attached hereto."
"`Montpelier Facility' shall mean the Company's facilities
located in Montpelier, Ohio, including, without limitation, all real
estate, machinery and equipment."
"`Original Senior Subordinated Note' shall have the meaning set
forth in Section 2.1 hereof."
"`Original Warrant' shall mean the warrant issued by the Company
to WBMCF in form and substance substantially identical to Exhibit D-1
attached hereto."
"`Permitted Sale' shall mean the sale by the Loan Parties of the
Montpelier Facility which (a) is approved by the Company's board of
directors, (b) permitted under the terms of the Senior Loan Agreement
as in effect on the date hereof, and (c) is approved in writing by
Lender, such approval not to be unreasonably withheld."
"`Senior Termination Date' shall mean April 30, 2002."
(b) The following definitions in Section 1.1 of the Loan Agreement
shall be deleted in their entirety and replaced with the following:
"`Lender' shall mean (1) with respect to the Original Loan, WBMCF
and its Affiliates, participants, transferees, successors and assigns,
and (2) with respect to the First Amendment Loans, WBMCF, Xxxxxx X.
Xxxxxx Living Trust
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dated 3/1/94, Xxxxxxx Xxxxxxx and Xxxxxx Xxxxxxx and their Affiliates,
participants, transferees, successors and assigns."
"`Loan' shall have the meaning set forth in Section 2.1(c)
hereof."
"Material Adverse Effect" shall mean a material adverse change
in, or a material adverse effect upon, the (a) business, operations,
properties, condition (financial or otherwise), operating results or
business prospects of the Loan Parties, taken as a whole, as a result
of the occurrence or existence of any single event or condition or
series of events or conditions in the aggregate, or (b) the ability of
the Loan Parties to perform their obligations under any of the Senior
Loan Documents or any of the Senior Subordinated Loan Documents to
which they are a party, or (c) the validity or enforceability of any
of the Senior Subordinated Loan Documents or the rights, powers and
remedies of Lender to enforce or collect the Obligations. In
determining whether any individual event could result in a Material
Adverse Effect, notwithstanding that such event does not of itself
have such effect, a Material Adverse Effect shall be deemed to have
occurred if the cumulative effect of such event and all other then
existing events could result in a Material Adverse Effect.
"`Principal' shall mean the unpaid principal amount of the Loan
including, without limitation, the principal amount of the Original
Loan (including, without limitation, the Deferred Interest Portion)
and the principal amount of the First Amendment Loans (including,
without limitation, the amounts added to the principal thereof
pursuant to Section 2.3(b)(ii) hereof)."
"`Senior Subordinated Note' shall have the meaning set forth in
Section 2.1(c) hereof."
"`Subordinated Indebtedness' shall mean (i) the Loan (including,
without limitation, the Original Loan and the First Amendment Loans),
(ii) each of the Drake Notes and (iii) any other unsecured
Indebtedness of the Loan Parties which has subordination terms,
covenants, pricing and other terms which have been approved in writing
by Senior Lenders and Lender."
(c) The definitions "Annualized EBITDA", "Minimum Equity
Contribution", and "Permitted Sale and Leaseback" shall be deleted from
Section 1.1 of the Loan Agreement in their entirety.
(d) The last sentence of Section 1.1 shall be deleted in its entirety
and replaced with the following:
"Other terms are defined elsewhere in this Loan Agreement. All
references in this Loan Agreement to the terms "Lender", "Loan", and
"Senior Subordinated Note" in the singular shall be deemed to refer to
the plural equivalent of the term as the context may so require."
(e) The last sentence of Section 1.2 shall be deleted in its
entirety.
(f) Section 2.1 of the Loan Agreement shall be deleted in its
entirety and replaced with the following:
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"2.1 Purchase and Sale of the Original Senior Subordinated Note
and the First Amendment Senior Subordinated Notes.
(a) Subject to the terms hereof, on July 21, 2000, Lender shall
purchase from the Loan Parties for a purchase price of Thirty
Million Dollars ($30,000,000) less the total amount allocated to
the Original Warrant consistent with the terms thereof, and the
Loan Parties shall issue and sell to Lender, a senior
subordinated note (the "Original Senior Subordinated Note")
evidencing a term loan in the principal amount of Thirty Million
Dollars ($30,000,000) (the "Original Loan"). The Original Senior
Subordinated Note shall be dated July 21, 2000, subject to the
terms and conditions of this Agreement and in the form attached
hereto as Exhibit C-1. The aggregate principal amount of the
Original Senior Subordinated Note outstanding on the First
Amendment Closing Date is Thirty Million Dollars ($30,000,000).
(b) Subject to the terms hereof, on the First Amendment Closing
Date, each Lender shall purchase from the Loan Parties, and the
Loan Parties shall issue and sell to each Lender, a senior
subordinated note (each, a "First Amendment Senior Subordinated
Note" and, collectively, the "First Amendment Senior Subordinated
Notes") evidencing a term loan (each, a "First Amendment Loan"
and, collectively, the "First Amendment Loans") in the amount set
forth opposite such Lender's name on Schedule 2.1 attached hereto
for the purchase price equal to such amount set forth opposite
such Lender's name on Schedule 2.1 attached hereto, less the
total amount allocated to such Lender's First Amendment Warrant
consistent with the terms thereof. The First Amendment Senior
Subordinated Notes shall be dated as of April 20, 2000, subject
to the terms and conditions of this Agreement and in the form
attached hereto as Exhibit C-2.
(c) The Original Senior Subordinated Note and the First Amendment
Senior Subordinated Notes are collectively referred to herein as
the "Senior Subordinated Note" and the Original Loan and the
First Amendment Loans are collectively referred to as the
"Loan"."
(g) Sections 2.3 of the Loan Agreement shall be deleted in its
entirety and replaced with the following:
"(a) Interest.
(i) Until the Deferred Interest Portion of the Original
Loan is paid in full, the Principal of the Original Loan
shall bear interest from January 1, 2001 until paid,
computed on the basis of a 360-day year for the actual
number of days elapsed, at a fixed annual rate of (1) 12.00%
for the period commencing January 1, 2001 through March 31,
2001, and (2) 15.00%. After the Deferred Interest Portion of
the Original Loan is paid in full, so long as no Event of
Default has occurred and is continuing, the Principal of the
Original Loan shall bear interest
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until paid, computed on the basis of a 360-day year for the
actual number of days elapsed, at a fixed annual rate of
12.00%.
(ii) So long as no Event of Default has occurred and is
continuing, interest shall accrue from the date hereof on
the Principal of the First Amendment Loans from time to time
outstanding until paid, computed on the basis of a 360-day
year for the actual number of days elapsed, initially at a
fixed annual rate of 12.00%."
"(b) Interest Payment or Accrual.
(i) During the Deferred Interest Period, accrued and
unpaid interest on the Principal of the Original Loan shall
be added to the aggregate principal amount of the Original
Loan as of the close of business on each Quarterly Payment
Date (the "Deferred Interest Portion") commencing with the
Quarterly Payment Date on March 31, 2001. At the expiration
of the Deferred Interest Period, the entire Deferred
Interest Portion shall be payable upon demand. Thereafter,
accrued interest shall be due and payable quarterly in
arrears on each Quarterly Payment Date. In addition, all
accrued and unpaid interest shall be paid upon the payment
in full of the Principal of the Original Loan and, if
payment in full is not made when due, thereafter on demand.
For illustration purposes only, an interest calculation
reflecting the application of this Section 2.3(b)(i) to the
Original Loan is set forth on Schedule 2.3(b)(i) attached
hereto.
(ii) During the Deferred Interest Period, accrued
interest on the Principal of the First Amendment Loans shall
be added to the Principal of the First Amendment Loans as of
the close of business on the Quarterly Payment Date.
Thereafter, accrued interest shall be due and payable in
arrears on each Quarterly Payment Date. The Principal amount
of the First Amendment Loans, including all amounts added
thereto pursuant to this Section 2.3(b)(ii), shall be
payable in accordance with Section 2.2 hereof. In addition,
all accrued and unpaid interest shall be paid upon the
payment in full of the Principal of the First Amendment Loan
and, if payment in full is not made when due, thereafter on
demand. For illustration purposes only, an interest
calculation reflecting the application of this Section
2.3(b)(ii) to the First Amendment Loans is set forth on
Schedule 2.3(b)(ii) attached hereto.
(c) Default Interest Rate.
(i) After the occurrence and during the continuance of
any Event of Default occurring after the date that the
Deferred Interest Portion is paid in full, all Obligations
with respect to the Original Loan shall bear interest from
the date of the occurrence
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of such Event of Default, payable on demand, at a fixed
annual rate of 15.00%.
(ii) After the occurrence and during the continuance of
any Event of Default, all Obligations with respect to the
First Amendment Loans shall bear interest from the date of
the occurrence of such Event of Default, payable on demand,
at a fixed annual rate of 15.00%.
(h) Section 2.4(c) of the Loan Agreement shall be deleted in its
entirety and replaced with the following:
"(c) Mandatory Prepayment on Sale or Change of Control. The Loan
Parties shall give written notice (a "Change Notice") to each Lender
upon the earlier of (i) thirty (30) days prior to the consummation of,
and (ii) the date of execution of a definitive agreement providing for
a Change of Control or a Sale (it being understood that, in connection
with a Change of Control not involving a transaction to which the
Company is a party, the Loan Parties shall deliver the relevant Change
Notice to each Lender promptly after it obtains knowledge thereof).
Upon receipt of a Change Notice, each Lender shall have the right,
exercisable at any time within thirty (30) days after receipt of a
Change Notice, to require that the Principal owed to such Lender be
repaid in full, together with all accrued interest thereon, and, if
Lender so elects, the Loan Parties shall prepay the outstanding
balance of the Principal owed to such Lender in full, together with
all accrued interest thereon, on or before the date of consummation of
the Change of Control or Sale."
(i) Section 4.6 of the Loan Agreement shall be deleted in its entirety
and replaced with the following:
4.6 Solvency. Each of the Loan Parties, individually (except for
Clarion Plastics Technologies, Inc., Clarion Real Estate, LLC, Mito
Plastics, Inc. and Clarion-Drake Acquisition, Inc.), and the Loan
Parties taken as a whole is Solvent prior to, and after giving effect
to, the transactions contemplated hereby. No transfer of property is
being made and no obligation is being incurred in connection with such
transactions with actual intent to hinder, delay or defraud either
present or future creditors.
(j) Sections 5.4(c) and 5.4(g) of the Loan Agreement shall be deleted
in their entirety and replaced with the following:
"(c) Certificates. With each of the audited annual reports
delivered pursuant to Section 5.4(b) above, and with each monthly
unaudited financial statement delivered pursuant to Section 5.4(a)
above, a certificate of the Company's President or Chief Financial
Officer or Controller (if such Controller is an executive officer), or
such other authorized officer of the Loan Parties acceptable to
Lender, stating that, except as explained in reasonable detail in such
certificate, (A) the Loan Parties are at the date of such certificate,
in compliance with all of the covenants and agreements in this
Agreement, and (B) no Event of Default or Potential Event of Default
then exists, and (C) with respect to the
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covenants set forth in Sections 6.15 and 6.17 hereof, setting forth
calculations demonstrating in reasonable detail that the Loan Parties
are in compliance with the applicable dollar limit and ratios,
respectively, set forth therein."
"(g) Reports to Senior Lenders. Together with any compliance
certificate, financial statement, or other report furnished to Senior
Lenders pursuant to the Senior Loan Documents (including, without
limitation, the reporting obligations contained in Sections 1.3(b),
1.9 and 4.2 of the Third Amendment to Credit Agreement as in effect on
the First Amendment Closing Date), a copy of the same setting forth in
reasonable detail all calculations for all amounts contained therein
(including, without limitation, the financial covenant calculations)
and, together with all other notices or certificates furnished to
Senior Lenders pursuant to the Senior Loan Documents, the Loan Parties
shall also deliver to Lender a copy of the same."
(k) Section 5.13 of the Loan Agreement shall be deleted in its
entirety and replaced with the following:
"5.13 Use of Proceeds.
(a) The Loan Parties shall use the proceeds of the Original
Loan solely to (i) repay in full any and all amounts due from the
Loan Parties to Senior Lenders on the date hereof under Term Note
B (as defined in the Senior Loan Agreement (as in effect on July
21, 2000)), (ii) reduce to zero dollars any and all amounts due
from the Loan Parties to Senior Lenders on the date hereof under
the Revolving Notes (as defined in the Senior Loan Agreement (as
in effect on July 21, 2000)) (iii) to prepay up to Three Million
Dollars ($3,000,000) of the Drake Note in the original principal
amount of Five Million Dollars ($5,000,000), (iv) to pay the cash
portion of the purchase price for the Small Parts Acquisition,
and (v) to pay the fees and expenses arising in connection with
the Senior Subordinated Loan Transactions or the Senior
Subordinated Loan Documents (it being understood that, any and
all proceeds hereunder in excess of the amounts referred to in
clauses (i) - (v) of this Section 5.13 shall be kept on hand for
general working capital purposes and other purposes permitted by
the terms hereof).
(b) The Loan Parties shall use the proceeds of the First
Amendment Loans solely to reduce any amounts due from the Loan
Parties to Senior Lenders on the First Amendment Closing Date
under the Revolving Notes (as defined in the Senior Loan
Agreement (as in effect on the First Amendment Closing Date))."
(l) Section 6.3 of the Loan Agreement shall be deleted in its entirety
and replaced with the following:
6.3 Contingent Liabilities. Except as set forth on Schedule 6.3
hereto or except as permitted under Section 6.1 hereof, the Loan
Parties shall not become liable for any Contingent Obligations.
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(m) Section 6.5 of the Loan Agreement shall be deleted in its entirety
and replaced with the following:
"6.5 Merger or Asset Sale. Except for the Permitted Sale, the
Loan Parties shall not (a) be a party to any merger, liquidation or
consolidation (except for a merger or consolidation in connection with
a Permitted Acquisition or of a Loan Party other than the Company with
and into another Loan Party including the Company (providing that in
any such merger involving the Company, the Company is the survivor),
(b) be a party to an Asset Sale except for dispositions of assets of
the Loan Parties for at least fair market value (as determined by the
Board of Directors of the Company) with a net book value in any fiscal
year not exceeding One Million Dollars ($1,000,000), or (c) sell with
recourse, or discount or otherwise sell for less than the face
thereof, any of its accounts or notes receivable."
(n) Section 6.7 of the Loan Agreement shall be deleted in its entirety
and replaced with the following:
"6.7 Investments; Acquisitions. The Loan Parties shall not make
or permit to exist any Investment in any Person, except for: (a)
advances to employees of the Loan Parties for travel or other ordinary
business expenses in the ordinary course of, and pursuant to the
reasonable requirements of the Loan Parties' Business; (b) extensions
of credit by the Loan Parties in the nature of accounts or notes
receivable arising from the sale of goods and services in the ordinary
course of business; (c) shares of stock, obligations or other
securities received by the Loan Parties in settlement of claims
arising in the ordinary course of business; (d) investments in Cash
Equivalents; (e) other Investments not to exceed Three Million Dollars
($3,000,000) in the aggregate or One Million Dollars ($1,000,000) in
any single Person; (f) Permitted Acquisitions occurring from and after
Lender's receipt of the 2000 Report and Certificate; (g) the
Investments existing on the date hereof and set forth on Schedule 6.7
hereto; and (h) Investment between any of the Loan Parties (it being
understood that none of the Investments referenced in clauses (a)-(h)
of this Section 6.7 shall be permitted to be made if, immediately
before or after giving effect thereto, any Event of Default or
Potential Event of Default exists). Without limiting the generality of
the foregoing, except for (i) the Small Parts Acquisition on the terms
set forth in the transaction documents attached hereto at Exhibit F,
and (ii) Permitted Acquisitions occurring from and after Lender's
receipt of the 2000 Report and Certificate, the Loan Parties shall not
purchase, lease (as lessee) or otherwise acquire (in a single
transaction or a series of related transactions), or enter into any
agreement to purchase or acquire all or substantially all of the
assets or the capital stock or other ownership interests of any
Person."
(o) Section 6.8 of the Loan Agreement shall be deleted in its entirety
and replaced with the following:
"6.8 Distributions. Except as set forth on Schedule 6.8 hereto,
the Loan Parties shall not directly or indirectly, declare, order,
make, or incur any liability to make (a) any Distribution, (b) pay any
management fee or similar fees to any stockholder of the Loan Parties
or any Affiliate of the Loan Parties,
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(c) make any payment, redemption, defeasance or repurchase of any
Subordinated Indebtedness existing on the date hereof (except with
respect to the Obligations hereunder or in accordance with the terms
and conditions of a subordination agreement in form and substance
acceptable to Lender), or (d) set aside funds for any of the
foregoing. Notwithstanding the foregoing: (i) any Loan Party (other
than the Company) may pay dividends or make other distributions to the
Company or one another; and (ii) the Company may pay quarterly
dividends to the holders of its Existing Convertible Preferred Stock
in an amount of shares of the Company's Common Stock in a manner
consistent with the terms of the Preferred Stock Amendments (as in
effect on April 17, 2001), provided that, in the case of any such
payment made (A) on or prior to March 31, 2002, the Fair Market Value
(as defined in the Preferred Stock Amendments (as in effect on April
17, 2001)) per share of Common Stock shall be $3.00 or more and (B)
after March 31, 2002, the Fair Market Value per share of Common Stock
(as defined in the Preferred Stock Amendments (as in effect on April
17, 2001)) shall be $2.00 or more.
(p) Section 6.13 of the Loan Agreement shall be deleted in its
entirety and replaced with the following:
"6.13 Sale and Leaseback Transactions. The Loan Parties shall not
directly or indirectly, enter into any arrangement with any Person
providing for the Loan Parties to lease or rent property that it has
sold or will sell or otherwise transfer to such Person, without the
prior written approval of Lender, which shall not be unreasonably
withheld."
(q) Notwithstanding any implication to the contrary contained herein
or in the Original Loan Agreement, during the period commencing on the date
hereof and ending on the earlier of April 30, 2002 or the date on which the
Deferred Interest Portion of the Original Loan is paid in full, the Loan
Parties shall not be required to abide by the terms of Section 6.17 of the
Loan Agreement or the reporting obligations solely with respect thereto
contained in Section 5.4(c) of the Loan Agreement (it being understood that
from and after May 1, 2002, the Loan Parties shall, automatically and
without any action on the part of Lender , continue to abide by the terms
thereof).
(r) Section 7.1(d), 7.1(f) and 7.1(g) shall be deleted in their
entirety and replaced with the following:
"(d) any representation or warranty made in this Agreement (as
the same shall be modified from time to time, (including, without
limitation, the First Amendment)) by the Loan Parties, or in any
certificate or financial statement furnished by the Loan Parties
pursuant to the provisions thereof, shall prove to have been false or
misleading in any material respect as of the time made or furnished;"
"(f) the Loan Parties shall default in the performance of or
compliance with any other covenant, condition or provision of (1) the
First Amendment or (2) this Agreement or any other Senior Subordinated
Loan Document to which it is a party (and not constituting an Event of
Default under the First Amendment or any of the other subsections of
this Section 7.1) and such
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default shall not be remedied for a period of fifteen (15) days after
notice thereof;"
"(g) (i) the entry of any judgment, order, decree, injunction or
finding by any court, arbitrator or similar tribunal that materially
threatens the ability of the Loan Parties to implement the proposed
restructuring; or
(ii) final judgment not fully covered by insurance or
otherwise indemnified to Lender's satisfaction which, with all
other such undischarged final judgments against the Loan Parties,
exceeds an aggregate of Two Hundred Fifty Thousand Dollars
($250,000) shall have been entered against the Loan Parties if,
within 30 days after the entry thereof, such judgment shall not
have been discharged or execution thereof stayed pending appeal,
or if, within 30 days after the expiration of any such stay, such
judgment shall not have been discharged, or if, enforcement
proceedings shall have been commenced by any creditor upon such
judgment."
(s) The second sentence of Section 8.1 of the Loan Agreement shall be
deleted in its entirety and replaced with the following:
"Any Lender or any assignees of Lender may assign all or any
portion of its interest in and rights under this Agreement and the
Senior Subordinated Note to any other Person (an "Assignee"), or grant
a participating or beneficial interest in this Agreement and the
Obligations to any lending institution (a "Participant")."
(t) Section 8.2 of the Loan Agreement shall be deleted in its entirety
and replaced with the following:
"8.2 Action by Lender. Except as provided in Sections 2.4(c) and
8.1 hereof, any action entitled to be taken by Lender shall require
the consent of Persons with at least fifty percent (50%) interest in
and rights to the Senior Subordinated Note at the time such action is
taken."
(u) Section 8.3 of the Loan Agreement shall be deleted in its entirety
and replaced with the following:
"8.3 Modifications, Amendments or Waivers. The provisions of this
Agreement may be modified, amended or waived, but only by a written
instrument signed by the Loan Parties and Persons with at least fifty
percent (50%) interest in and rights to the Senior Subordinated Note
at the time such modifications, amendments or waivers are taken.
(v) Section 8.5 of the Loan Agreement shall be deleted in its entirety
and replaced with the following:
"8.5 Reimbursement of Expenses; Taxes. The Loan Parties agree
upon demand to pay or reimburse each Lender whose Principal
outstanding under the Senior Subordinated Notes is equal to or exceeds
One Million Dollars ($1,000,000) for all of their reasonable
out-of-pocket expenses, including,
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without limitation, all travel expenses and all reasonable legal,
consulting, accounting and independent analyst, audit, and appraisal
fees and expenses, from time to time (a) arising in connection with
the preparation of the Senior Subordinated Loan Documents or the
Senior Subordinated Loan Transactions; (b) relating to any amendments,
waivers or consents pursuant to the provisions hereof or thereof; (c)
incurred by Lender or its designees in the performance of their duties
as directors of the Loan Parties, if applicable, and (d) arising in
connection with the enforcement of the Senior Subordinated Loan
Documents, collection of the Obligations or actions for declaratory
relief in any way related thereto or the protection or preservation of
any rights of Lender hereunder. The Loan Parties also agree to pay and
save Lender harmless from all liability for any stamp or other similar
documentary or recording taxes which may be payable in connection with
this Agreement and the other Senior Subordinated Loan Documents or the
performance of any transactions contemplated hereby or thereby."
(w) Schedule 2.1 (Allocation of First Amendment Senior Subordinated
Notes) attached hereto shall be added to the Loan Agreement.
(x) Schedule 2.3(e)(i) (Deferred Interest Calculation for Original
Loan) attached hereto shall be added to the Loan Agreement.
(y) Schedule 2.3(e)(ii) (Deferred Interest Calculation for First
Amendment Loans) attached hereto shall be added to the Loan Agreement.
(z) Schedule 2.5 (Payments) shall be deleted in its entirety and a new
Schedule 2.5 attached hereto shall be substituted therefor.
(aa) Schedule 4.3 (Capitalization) shall be deleted in its entirety
and a new Schedule 4.3 attached hereto shall be substituted therefor.
(bb) Schedule 4.16 (Absence of Changes) shall be deleted in its
entirety and a new Schedule 4.16 attached hereto shall be substituted
therefor.
(cc) Schedule 4.21 (Affiliate Transactions) shall be deleted in its
entirety and a new Schedule 4.21 attached hereto shall be substituted
therefor.
(dd) Schedule 6.1 (Certain Indebtedness) shall be deleted in its
entirety and a new Schedule 6.1 attached hereto shall be substituted
therefor.
(ee) Schedule 6.7 (Contemplated Investments) shall be deleted in its
entirety and a new Schedule 6.7 attached hereto shall be substituted
therefor.
(ff) Schedule 6.8 (Distributions) shall be deleted in its entirety and
a new Schedule 6.8 attached hereto shall be substituted therefor.
(gg) Schedule 6.10 (Transactions with Affiliates) shall be deleted in
its entirety and a new Schedule 6.10 attached hereto shall be substituted
therefor.
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(hh) Schedule 6.14 (Investment Banking Brokers & Finder's Fees) shall
be deleted in its entirety and a new Schedule 6.14 attached hereto shall be
substituted therefor.
(ii) Schedule 7.1 (Certain Executive Officers) shall be deleted in its
entirety and a new Schedule 7.1 attached hereto shall be substituted
therefor.
6. Amendment of the Registration Rights Agreement. Subject to the Loan
Parties' performance of their obligations to Lender hereunder on the date
hereof, the parties hereto agree to amend the terms of the Registration Rights
Agreement as follows:
(a) The Recitals to the Registration Rights Agreement shall be deleted
in their entirety and replaced with the following recitals:
"A. On July 21, 2000, the Company entered into this Agreement
pursuant to that certain Senior Subordinated Loan Agreement dated as
of July 21, 2000 among the Company, its subsidiaries made a party
thereto and WBMCF (the "Original Loan Agreement). In connection with
the Original Loan Agreement, the Company agreed, upon the terms and
subject to the conditions contained therein, to issue and sell to
WBMCF a warrant (the "Original Warrant") entitling the holder thereof
to purchase the number of shares (the "Original Warrant Shares") of
common stock, $0.001 par value, of the Company (the "Common Stock"),
as set forth therein. To induce WBMCF to execute and deliver the
Original Loan Agreement, the Company agreed to provide certain
registration rights under the Securities Act of 1933, as amended, and
the rules and regulations thereunder, or any similar successor statute
(collectively, the "Securities Act"), and applicable state securities
laws.
B. In connection with the waiver of existing defaults under the
Original Loan Agreement and the Senior Loan Agreement (as defined in
the Original Loan Agreement), the Loan Parties have further requested,
and WBMCF has further agreed, to amend the Original Loan Agreement
(the "First Amendment Loan Agreement" and, together with the Original
Loan Agreement, as the same may be amended, supplemented, restated or
otherwise modified from time to time in compliance with the terms
thereof, the "Loan Agreement") and to make provision for the purchase
of additional senior subordinated notes of the Loan Parties by WBMCF
and the additional lenders set forth in Schedule 2.1 of the Loan
Agreement (the "First Amendment Lenders"), having an aggregate
principal amount of $3,000,000 (the "First Amendment Senior
Subordinated Notes").
C. Concurrent with the First Amendment Loan Agreement and the
First Amendment, the Company has agreed to issue and sell to First
Amendment Lenders warrants (the "First Amendment Warrants" and,
together with the Original Warrant, the "Warrant") entitling the
holders thereof to purchase the number of shares (the "First Amendment
Warrant Shares" and, together with the Original Warrant Shares, the
"Warrant Shares"), of Common Stock as set forth therein. In addition,
to induce First Amendment Lenders to execute and deliver the First
Amendment Loan Agreement, the Company has agreed to amend the
Registration Rights Agreement to extend certain registration rights
under the
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Securities Act and applicable state securities laws to the First
Amendment Warrant Shares, all upon the terms and conditions set forth
herein."
(b) The definitions of "Holder" and "Registrable Securities" in
Section 1.1 of the Registration Rights Agreement shall be deleted in their
entirety and replaced with the following:
"(b) The term "Holder" means WBMCF, Xxxxxx X. Xxxxxx Living
Trust dated 3/1/94, Xxxxxxx Xxxxxxx and Xxxxxx Xxxxxxx and any
transferees or assignees who agree to become bound by the provisions
of this Agreement in accordance with Article IX hereof."
"(c) The term "Registrable Securities" means the Warrant
Shares issued or issuable with respect to the Original Warrant and the
First Amendment Warrants (without regard to any limitations on
conversion or exercise of any Warrant) and any shares of capital stock
or other securities issued or issuable, from time to time (with any
adjustments), on or in exchange for or otherwise with respect to the
Common Stock or any other Registrable Securities."
(c) Section 1.2 of the Registration Rights Agreement shall be deleted
in its entirety and replaced with the following:
"1.2 Capitalized Terms. Capitalized terms used herein and not
otherwise defined in this Agreement shall have the respective meanings
set forth in the Loan Agreement. All references in this Agreement to
the terms "Holder" or "Warrant" in the singular shall be deemed to
refer to the plural equivalent of the term as the context may so
require."
(d) Section 2.1 of the Registration Rights Agreement shall be deleted
in its entirety and replaced with the following:
(a) At any time after July 21, 2001, Holders of a majority
of Registrable Securities may request the registration under the
Securities Act of all or any portion of their Registrable Securities
(a "Demand Registration"); provided, however, that any Demand
Registration pursuant to this Section 2.1(a) shall be in increments of
at least three hundred thousand (300,000) shares of Common Stock (as
adjusted for any stock splits, subdivisions, or similar events). No
more than three (3) Demand Registrations may be requested pursuant to
this Section 2.1(a); provided, however, that a registration shall be
counted for such purposes only if it becomes effective under the
Securities Act.
(b) At any time after which the Company is eligible to file
a Registration Statement on Form S-3 (or any replacement form) to
register Registrable Securities on account of Holder, Holders of a
majority of Registrable Securities may request the registration under
the Securities Act of all or any portion of their Registrable
Securities (also a "Demand Registration"); provided, however, that any
Demand Registration pursuant to this Section 2.1(b) shall be in
increments of at least three hundred thousand (300,000) shares of
Common Stock (as adjusted for any stock splits, subdivisions, or
similar events). No more than
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15
two (2) registrations in any twelve (12) month period may be requested
pursuant to this Section 2.1(b); provided, however, that a
registration shall be counted for such purposes only if it becomes
effective under the Securities Act.
7. Preferred Stock Amendments. The Loan Parties hereby acknowledge and
agree that the Preferred Stock Amendments affect Lender adversely and that,
pursuant to Section 6.9 of the Loan Agreement, such amendments require the
consent of Lender, which Lender hereby grants upon the terms and conditions set
forth in this First Amendment.
8. First Amendment Conditions. The First Amendment and the obligations of
Lender contemplated hereby shall be governed by and subject to the following
terms and conditions:
(a) receipt of this Waiver, Consent and First Amendment to Senior
Subordinated Loan Documents, duly executed by the Loan Parties;
(b) receipt of the applicable First Amendment Senior Subordinated
Notes and the First Amendment Warrants, in each case duly executed by the
Loan Parties;
(c) receipt of the amendment to Intercreditor Agreement, duly executed
by Senior Lenders;
(d) receipt of the written opinion of Varnum, Riddering, Xxxxxxx &
Xxxxxxx LLP, counsel to the Loan Parties, dated as of the date hereof, in
form and substance satisfactory to Lender;
(e) receipt of the certificate of incorporation of the Company, as
amended, certified by the Secretary of State of the Delaware, together with
a copy of the Company's By-Laws, certified by the Company's secretary to be
true and correct and in full force and effect;
(f) receipt of certified copies of all documents evidencing corporate
action taken by each Loan Party with respect to the consummation of the
transactions contemplated by this First Amendment, including but not
limited to, resolutions of the Board of Directors of each Loan Party
authorizing the execution, delivery and performance by such Loan Party of
this First Amendment, the First Amendment Senior Subordinated Notes, and
the First Amendment Warrants;
(g) receipt of a certificate of each Loan Party, signed by its chief
executive officer or president, to the effect that: (i) all of the
representations and warranties of such party contained in this First
Amendment are true and correct as of the date hereof; (ii) such party has
complied with and performed all of the terms, covenants and agreements
contained in the Senior Subordinated Loan Documents which are to be
complied with or performed by such party on or before the date hereof; and
(iii) no Event of Default or Potential Event of Default (other than the
Existing Defaults) has occurred and is continuing;
(h) receipt of the Third Amendment to Credit Agreement and any and all
other documents, agreements, certificates and instruments executed or
delivered in connection therewith, certified by the Loan Parties' secretary
to be true and correct and in full force and effect (collectively, together
with the Third Amendment to Credit
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Agreement, the "Amended Senior Loan Documents") each in form and substance
satisfactory to Lender in their sole discretion; and
(i) receipt of the Preferred Stock Amendments and that certain
Guaranty dated as of April 17, 2001, from each of Xxxxx and Xxxxxx Xxxxxx
to Senior Lenders in an amount of up to $1,000,000 and any and all other
documents, agreements, certificates, each certified by the Loan Parties'
secretary to be true and correct and in full force and effect, and each in
form and substance satisfactory to Lender in their sole discretion;
(j) receipt of the execution and delivery or obtainment of such other
instruments, documents, agreements, certificates, instruments, consents,
waivers, opinions and information as Lender may reasonably request.
The Company shall provide the documents specified in (a) - (k) in a form
reasonably acceptable to Lender.
9. Representations and Warranties of the Loan Parties. As a further
inducement for WBMCF to consent to the transactions contemplated by this
Agreement, the Loan Parties hereby represent and warrant to Lender that:
(a) The Loan Parties have the requisite power and authority to
execute, deliver and carry out this Agreement and the transactions
contemplated hereby.
(b) The execution and delivery of this Agreement, the Amended Senior
Loan Documents and the consummation by the Loan Parties of the transactions
contemplated hereby or thereby has been duly authorized by all necessary
action and other consents, approvals and the like required on the part of
the Loan Parties.
(c) Neither the execution and delivery by the Loan Parties of this
First Amendment or the Amended Senior Loan Documents nor the consummation
of the transactions contemplated hereby or thereby, nor compliance by the
Loan Parties with the terms, conditions and provisions hereof or thereof,
shall (i) conflict with or result in a breach of the terms, conditions or
provisions of, (ii) constitute a default under, (iii) result in the
creation of any lien, security interest, charge or encumbrance upon its
capital stock or assets pursuant to, (iv) give any third party the right to
accelerate any obligation under, (v) result in a violation of or (vi)
require any authorization, consent, approval, exemption or other action by
or notice to any court or administrative or governmental body pursuant to
the Certificate or Articles of Incorporation or by-laws of the Loan Parties
or any law, statute, rule or regulation to which the Loan Parties are
subject, or any agreement, instrument, order, judgment or decree to which
the Loan Parties are subject.
(d) This First Amendment and the Amended Senior Loan Documents have
been duly and validly executed and delivered by the Loan Parties and
constitute legal, valid and binding obligations, and all such obligations
of the Loan Parties are enforceable in accordance with their respective
terms.
(e) Except for the Existing Defaults, no event has occurred and is
continuing and no condition exists which would constitute an Event of
Default or Potential Event of Default.
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(f) Except for: (i) the representation and warranty set forth in the
first sentence of Section 4.4 of the Loan Agreement; (ii) the
representations and warranties with respect to the matters disclosed on
revised Schedules 4.3, 4.10, 4.16 and 4.21 attached to this First
Amendment; all representations and warranties of the Loan Parties in the
Loan Agreement remain true and correct as of the date hereof as though
originally made on and as of the date hereof and will be true and correct
after giving effect to the amendments set forth in Section 5 hereof.
(g) Each Loan Party represents that: (a) it has no intention to file
or acquiesce in the filing of any bankruptcy or insolvency proceeding
hereafter, absent Lender's approval of such proceeding; and (b) the period
commencing on the First Amendment Closing Date and ending on the Senior
Termination Date is sufficient for such Loan Party to accomplish the
commitments it has undertaken in this First Amendment.
(h) The Company represents and warrants that it is currently eligible
to register the resale of the Warrant Shares and all Registrable Securities
by Holder on a Registration Statement on Form S-3 under the Securities Act
for the account of Holder (and not for or on behalf of the Company).
10. Release and Indemnity.
(a) Each Loan Party does hereby release and forever discharge Lender
and each Affiliate thereof and each of their respective employees,
officers, directors, partners, trustees, agents, attorneys, successors,
assigns or other representatives from any and all claims, demands, damages,
actions, cross-actions, causes of action, costs and expenses (including
legal expenses), of any kind or nature whatsoever, whether based on law or
equity, which any of said parties has held, whether known or unknown, for
or because of any matter or thing done, omitted or suffered to be done on
or before the actual date upon which this First Amendment is signed by any
of such parties (i) arising directly or indirectly out of this First
Amendment, or any other documents, instruments or any other transactions
relating thereto and/or (ii) relating directly or indirectly to all
transactions by and between each Loan Party and WBMCF or any of its
respective directors, partners, officers, agents, employees, attorneys or
other representatives.
(b) Each Loan Party shall and hereby does indemnify each Lender and
each Affiliate thereof and their respective directors, partners, officers,
employees and agents from, and hold each of them harmless against, any and
all losses, liabilities, claims or damages (including reasonable legal fees
and expenses) to which any of them may become subject, insofar as such
losses, liabilities, claims or damages arise out of or result from any
actual or proposed use by any Loan Party of the proceeds of any extension
of credit under this First Amendment or any investigation, litigation or
other proceeding (including any threatened investigation or proceeding)
relating to the foregoing or any of the other Senior Subordinated Loan
Documents, and the Loan Parties shall reimburse each Lender and each
Affiliate thereof and their respective directors, partners, officers,
employees and agents, upon demand for any expenses (including legal fees)
reasonably incurred in connection with any such investigation or
proceeding; but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence, bad faith or willful
misconduct of the Person to be indemnified or in connection with disputes
exclusively between Lenders.
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(c) Without limiting any provision of this First Amendment, it is the
express intention of the parties hereto that each Person to be indemnified
hereunder or thereunder shall be indemnified and held harmless against any
and all losses, liabilities, claims or damages: (i) arising out of or
resulting from the sole ordinary or contributory negligence of such Person
or (ii) imposed upon said party under any theory of strict liability.
Without prejudice to the survival of any other obligations of the Loan
Parties hereunder and under the other Senior Subordinated Loan Documents,
the obligations of the Loan Parties under this Section 10 shall survive the
termination of the Senior Subordinated Loan Documents and the other Senior
Subordinated Loan Documents and the payment of the Obligations.
11. Board of Directors. Without limiting the generality of WBMCF's rights
under Section 12(c) of the Original Warrant, until further notice from WBMCF in
writing, the Company shall suspend its best efforts to ensure the recommendation
to the Shareholders of a representative designated by WBMCF for election to the
Board of Directors of the Company (it being understood that, upon such further
notice from WBMCF, the Company shall resume such efforts).
12. Miscellaneous.
(a) Further Assurances. The Loan Parties shall, from time to time at
the request of Lender, do all further acts and things as may in the opinion
of Lender be necessary or advisable to effectuate the transaction and other
matters contemplated hereby, including, without limitation, the
modification of or amendment to any other agreements, certificates or
instruments to which the Loan Parties are a party.
(b) Notices. All notices and other communications given to or made
upon any party hereto in connection with this Agreement shall be in
accordance with Section 8.6 of the Loan Agreement.
(c) Joint and Several Liability. Except as specifically set forth
herein, the liability of each Loan Party under this First Amendment and the
other agreements in general shall be joint and several, and each reference
herein to the Loan Parties shall be deemed to refer to each such Loan
Party. In furtherance and not in limitation of Lender's rights and remedies
hereunder or at law, Lender may proceed under this Agreement and the other
agreements against any one or more of the Loan Parties in their absolute
and sole discretion for any of the obligations of the Loan Parties or any
other liability or obligation of the Loan Parties arising hereunder.
(d) Survival. All representations, warranties, covenants,
indemnifications, consents and agreements of the Loan Parties contained
herein or made in writing in connection herewith shall survive the
execution and delivery of this First Amendment, the making of the term
loans hereunder and the issuance of the First Amendment Senior Subordinated
Notes and, except as set forth otherwise herein, shall remain in effect
through the date that all amounts due hereunder are paid to Lender.
(e) Entire Agreement. This First Amendment and the instruments to be
delivered by the parties pursuant to the provisions hereof constitute the
entire agreement between the parties hereto with respect to the subject
matter hereof. The provisions of this First Amendment may be modified,
amended or waived, but only by a written instrument signed by the Loan
Parties and Persons with at least fifty percent (50%)
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interest in and rights under the Senior Subordinated Note at the time such
modifications, amendments or waivers are taken.
(f) Counterparts. This First Amendment may be executed in any number
of counterparts and by any party hereto on separate counterparts, each of
which, when so executed and delivered, shall be an original, but all such
counterparts shall together constitute one and the same instrument.
(g) Captions. Section captions used in this First Amendment are for
convenience only, and shall not affect the construction of this First
Amendment.
(h) No Further Amendments. Except as specifically amended hereby, the
terms and provisions of the Loan Agreement shall remain in full force and
effect.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver, Consent and
First Amendment to Senior Subordinated Loan Documents to be executed and
delivered by their duly authorized officers as of the day and year first above
written.
XXXXXXX XXXXX MEZZANINE CAPITAL FUND III, L.P.
By: Xxxxxxx Xxxxx Mezzanine Capital Partners III,
L.L.C., its general partner
By: /s/ XXXXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxxxx X. Xxxxx
-------------------------------------
Title: Managing Director
-------------------------------------
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COUNTERPART SIGNATURE PAGE
WAIVER, CONSENT AND FIRST AMENDMENT TO SENIOR SUBORDINATED
LOAN DOCUMENTS
Xxxxxx X. Xxxxxx Living Trust dated 3/1/94
By:
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
/s/ XXXXXXX XXXXXXX
--------------------------------------------
Xxxxxxx Xxxxxxx
/s/ XXXXXX XXXXXXX
--------------------------------------------
Xxxxxx Xxxxxxx
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COUNTERPART SIGNATURE PAGE
WAIVER, CONSENT AND FIRST AMENDMENT TO SENIOR SUBORDINATED
LOAN DOCUMENTS
CLARION TECHNOLOGIES, INC.
By: /s/ XXXX XXXX
-----------------------------------------
Xxxx Xxxx, Acting Chief Financial Officer
CLARION PLASTICS TECHNOLOGIES, INC.
By: /s/ XXXX XXXX
-----------------------------------------
Xxxx Xxxx, Acting Chief Financial Officer
CLARION REAL ESTATE, LLC.
By: /s/ XXXX XXXX
-----------------------------------------
Xxxx Xxxx, Acting Chief Financial Officer
DOUBLE "J" MOLDING, INC
By: /s/ XXXX XXXX
-----------------------------------------
Xxxx Xxxx, Acting Chief Financial Officer
CLARION-DRAKE ACQUISITION, INC.
By: /s/ XXXX XXXX
-----------------------------------------
Xxxx Xxxx, Acting Chief Financial Officer
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MITO PLASTICS, INC.
By: /s/ XXXX XXXX
-----------------------------------------
Xxxx Xxxx, Acting Chief Financial Officer
WAMAR PRODUCTS, INC.
By: /s/ XXXX XXXX
-----------------------------------------
Xxxx Xxxx, Acting Chief Financial Officer
WAMAR TOOL & MACHINE CO.
By: /s/ XXXX XXXX
-----------------------------------------
Xxxx Xxxx, Acting Chief Financial Officer
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