EXHIBIT 4.4(b)
AMENDMENT NO. 1
TO
LOAN AGREEMENT
THIS AMENDMENT, dated as of the 13th day of May, 2002, by and between
Tecstar, LLC, an Indiana limited liability company ("Company"), and Comerica
Bank, a Michigan banking corporation ("Bank");
WITNESSETH:
WHEREAS, Company and Bank desire to amend that certain Loan Agreement dated
as of February 13, 2002, entered into by Company and Bank ("Agreement");
NOW, THEREFORE, it is agreed that the Agreement is amended as follows:
1. The first sentence of Section 1.1 of the Agreement is amended to read in
its entirety as follows:
"Subject to the terms of this Agreement, Bank agrees to lend to Company at
any time and from time to time from the effective date hereof until April 1,
2004 sums not to exceed under the line of credit Fifteen Million Dollars
($15,000,000) in aggregate principal amount at any one time outstanding."
2. The first sentence of Section 1.5 of the Agreement is amended to read in
its entirety as follows:
"Company shall pay to Bank an unused fee equal to one quarter of one
percent (1/4%) per annum multiplied by the average daily amount by which Fifteen
Million Dollars ($15,000,000) exceeds the aggregate amount of outstanding
advances under the Line Note."
3. The first sentence of Section 1.6 of the Agreement is amended to read in
its entirety as follows:
"In addition to advances under the Line Note to be provided to Company by
Bank under and pursuant to Section 1.1 of this Agreement, Bank may issue, or
commit to issue, from time to time, standby letters of credit for the account of
Company (herein individually called a "Letter of Credit" and collectively
"Letters of Credit") in aggregate undrawn amounts not to exceed Five Hundred
Thousand Dollars ($500,000) at any one time outstanding; provided, however that
the sum of the aggregate amount of advances outstanding under the Line Note plus
the undrawn amounts of all Letters of Credit shall not exceed Fifteen Million
Dollars ($15,000,000) at any one time; and provided further that no Letter of
Credit shall, by its terms, have an expiration date which extends beyond the
maturity date of the Line Note."
4. Section 4.1(c) of the Agreement is amended to read in its entirety as
follows:
"(c) within twenty (20) days after and as of the end of each month, agings
of accounts receivable and accounts payable and an inventory report,
each in form satisfactory to Bank;"
5. The first sentence and the table in Section 4.13 of the Agreement are
amended to read in their entireties as follows:
"4.13Maintain at all times, a Tangible Net Worth of not less than the
following amounts during the periods specified below:
March 31, 2002 through June 29, 2002 $0
June 30, 2002 through September 29, 2002 $500,000
September 30, 2002 through December 30, 2002 $1,000,000
December 31, 2002 through March 30, 2003 $1,500,000
March 31, 2003 through June 29, 2003 $2,000,000
June 30, 2003 through September 29, 2003 $2,500,000
September 30, 2003 through December 30, 2003 $3,000,000
December 31, 2003 through March 30, 2004 $3,250,000
March 31, 2004 and thereafter $3,500,000"
6. The first sentence and the table in Section 4.14 of the Agreement are
amended to read in their entireties as follows:
"4.14Maintain at all times, Working Capital of not less than the following
amounts during the periods specified below:
March 31, 2002 through June 29, 2002 ($2,750,000)
June 30, 2002 through September 29, 2002 ($2,500,000)
September 30, 2002 through December 30, 2002 ($2,250,000)
December 31, 2002 through March 30, 2003 ($2,000,000)
March 31, 2003 through June 29, 2003 ($1,750,000)
June 30, 2003 through September 29, 2003 ($1,500,000)
September 30, 2003 through December 30, 2003 ($1,250,000)
December 31, 2003 through March 30, 2004 ($1,000,000)
March 31, 2004 and thereafter ($750,000)"
7. Exhibits "A" and "B" to the Agreement are amended to read in their
entireties in the forms annexed hereto as Exhibits "A" and "B", respectively.
8. Company hereby represents and warrants that, after giving effect to the
amendments contained herein, (a) execution, delivery and performance of this
Amendment and any other documents and instruments required under this Amendment
or the Agreement are within Company's limited liability company powers, have
been duly authorized, are not in contravention of law or the terms of Company's
Articles of Organization or Operating Agreement, and do not require the consent
or approval of any governmental body, agency, or authority; and this Amendment
and any other documents and instruments required under this Amendment or the
Agreement, will be valid and binding in accordance with their terms; (b) the
continuing representations and warranties of Company set forth in Sections 3.1
through 3.5 and 3.7 through 3.14 of the Agreement are true and correct on and as
of the date hereof with the same force and effect as made on and as of the date
hereof;(c) the continuing representations and warranties of Company set forth in
Section 3.6 of the Agreement are true and correct as of the date hereof with
respect to the most recent financial statements furnished to the Bank by Company
in accordance with Section 4.1 of the Agreement; and (d) no event of default, or
condition or event which, with the giving of notice or the running of time, or
both, would constitute an event of default under the Agreement, has occurred and
is continuing as of the date hereof.
9. This Amendment shall be effective upon (a) execution of this Amendment
by Company and Bank, (b) execution and delivery by Company to Bank of a
$15,000,000 Line Note in the form of Exhibit "A" annexed hereto, and (c) payment
by Company to Bank of a non-refundable amendment fee in the amount of $10,000.
10. Except as modified hereby all of the terms and conditions of the
Agreement shall remain in full force and effect.
WITNESS the due execution hereof on the day and year first above written.
COMERICA BANK ECSTAR, LLC
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxxxx
Its: Vice President Its: President
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxxxxx
Its: Chief Financial Officer
EXHIBIT "A"
LINE NOTE
$15,000,000 Detroit, Michigan
April ___, 2002
On or before April 1, 2004, FOR VALUE RECEIVED, the undersigned, Tecstar,
LLC, an Indiana limited liability company (herein called "Company") promises to
pay to the order of COMERICA BANK, a Michigan banking corporation (herein called
"Bank") at its Main Office at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, the
indebtedness or so much of the sum of Fifteen Million Dollars ($15,000,000) as
may from time to time have been advanced and then be outstanding hereunder and
under a certain Loan Agreement by and between Company and Bank dated February
13, 2002 (as may be amended from time to time, the "Loan Agreement").
The indebtedness outstanding under this Note from time to time shall bear
interest at a per annum rate equal to the Bank's Prime Rate plus or minus, as
applicable, the Applicable Margin (as defined in the Loan Agreement). Upon the
occurrence of any event of default hereunder or under the Loan Agreement,
interest shall accrue on the unpaid balance hereunder at a per annum rate equal
to three percent (3%) above the rate otherwise in effect. Interest shall be
payable monthly on the unpaid principal balance from time to time outstanding
commencing on May 1, 2002 and on the first business day of each month thereafter
until April 1, 2004 when the entire unpaid balance of principal and interest
shall be due and payable. Interest shall be computed on a daily basis using a
year of 360 days for the actual number of days elapsed, and, in such
computation, effect shall be given to any change in the interest rate resulting
from a change in the Prime Rate on the date of such change in the Prime Rate.
"Prime Rate" shall mean the rate of interest established by Bank and publicly
announced as its prime rate as the same may be changed from time to time, which
may not necessarily be Bank's lowest rate for loans. This Note may be prepaid at
any time without premium or penalty.
This Note evidences borrowing under, is subject to, is secured pursuant to,
shall be prepaid in accordance with, and may be matured under the terms of the
Loan Agreement, to which reference is hereby made. As additional security, Bank
is granted a lien on all personal property and assets (including deposits and
other credits) of Company at any time in possession or control of (or owing by)
Bank for any purpose.
All agreements between Company and Bank pertaining to the indebtedness
described herein are expressly limited so that in no event whatsoever shall the
amount of interest paid or agreed to be paid to Bank exceed the highest rate of
interest permissible under applicable law. If, from any circumstances
whatsoever, fulfillment of any provision of the Loan Agreement, this Note or any
other instrument securing this Note or all or any part of the indebtedness
secured thereby, at the time performance of such provision shall be due, shall
involve exceeding the interest limitation validly prescribed by law which a
court of competent jurisdiction may deem applicable hereto, then, the obligation
to be fulfilled shall be reduced to an amount computed at the highest rate of
interest permissible under such applicable law, and if, for any reason
whatsoever, Bank shall ever receive as interest an amount which would be deemed
unlawful under such applicable law, such interest shall be automatically applied
to the payment of the principal amount described herein or otherwise owed by
Company to Bank, (whether or not then due and payable) and not to the payment of
interest.
Company hereby waives presentment for payment, demand, protest and notice
of dishonor and nonpayment of this Note and agrees that no obligation hereunder
shall be discharged by reason of any extension, indulgence, release, or
forbearance granted by any holder of this Note to any party now or hereafter
liable hereon or any present or subsequent owner of any property, real or
personal, which is now or hereafter security for this Note. Any transferees of,
or endorser, guarantor or surety paying this Note in full shall succeed to all
rights of Bank, and Bank shall be under no further responsibility for the
exercise thereof or the loan evidenced hereby. Nothing herein shall limit any
right granted Bank by other instrument or by law.
If the interest and principal hereof are not fully paid at maturity hereof
(whether by acceleration or otherwise), Company shall pay the holder hereof all
its reasonable costs of collection of said principal and interest including, but
not limited to, reasonable attorney fees.
THE UNDERSIGNED AND THE BANK ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS
A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER CONSULTING
(OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE,
KNOWINGLY AND VOLUNTARILY AND FOR THEIR MUTUAL BENEFIT, WAIVES ANY RIGHT TO
TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR
ENFORCEMENT OF, OR IN ANY WAY RELATED TO THIS NOTE.
Notwithstanding anything herein to the contrary, nothing shall limit any
rights granted Bank by other instruments or by law.
This Note replaces by renewal and increases that certain $10,000,000 Line
Note dated February 13, 2002 made by Company payable to Bank.
TECSTAR, LLC
By:
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Xxxxxxx X. Xxxxxxx
Its: President
By:
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Xxxxxxx X. Xxxxxx
Its: Chief Financial Officer
