EXHIBIT 10(b)
FIRST AMENDMENT TO
LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT (this "Amendment") is entered
into as of July 25, 2003 (the "Effective Date"), among TITAN INTERNATIONAL,
INC., an Illinois corporation (the "Borrower"), each of the parties who is a
Guarantor (the "Guarantors"), and LA SALLE BANK NATIONAL ASSOCIATION, a national
banking association (the "Bank"). Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed thereto in the Loan Agreement
(as defined below).
RECITALS
WHEREAS, the Borrower, the Guarantors and the Bank entered into that
certain Loan Agreement, dated as of December 21, 2001 (as amended or modified
from time to time, the "Loan Agreement"), together with a Revolving Note,
Security Agreement and the other Loan Documents (as defined in the Loan
Agreement);
WHEREAS, the Borrower has requested that the Bank amend certain
provisions of the Loan Agreement; and
WHEREAS, the Bank is willing to amend certain provisions of the Loan
Agreement, as more fully set forth herein, subject to the terms and conditions
specified below.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
SECTION 1
RECITALS
The Recitals to this Agreement are incorporated herein by reference as
fully and with the same force and effect as if repeated herein at length.
SECTION 2
MODIFICATION TO LOAN DOCUMENTS
Each and every Loan Document is hereby modified and amended to reflect
the terms hereof; and wherever reference is made to any such Loan Document, such
reference shall be deemed to refer to such Loan Document as modified and amended
by this Amendment.
SECTION 3
AMENDMENTS TO LOAN AGREEMENT
3.1 Definitions.
(a) Applicable Margin. The following definition of
"Applicable Margin" is added to Section 1.1 of the Loan Agreement:
"Applicable Margin" shall mean the respective percentage per
annum which will be added to the Revolving Interest Rate under this
Agreement. The Applicable Margin will be based upon the aggregate
amount of Loans outstanding from time to time hereunder. The Applicable
Margin will be determined in accordance with the following table:
------------------ -------------------------------- -------------------------- ----------------------------
Level Aggregate Amount of Loans Prime Rate Margin Libor Rate Margin
Outstanding
------------------ -------------------------------- -------------------------- ----------------------------
"Tier 1" Less than or equal to 0% 2.00%
$15,000,000
------------------ -------------------------------- -------------------------- ----------------------------
"Tier 2" More than $15,000,000 2.50% 4.50%
------------------ -------------------------------- -------------------------- ----------------------------
If the aggregate Loans outstanding at any time are less than or equal
to $15,000,000, the Tier 1 Applicable Margin will apply. To the extent
the aggregate Loans outstanding at any time exceed $15,000,000, the
Tier 2 Applicable Margin will apply to that portion of the Loans that
exceed $15,000,000. The Bank shall have full authority to determine the
particular Loans (or portions thereof) to which the Tier 1 or Tier 2
Applicable Margins will apply.
(b) Default Rate. The definition of "Default Rate" set
forth in Section 1.1 of the Loan Agreement is amended and restated in
its entirety to read as follows:
"Default Rate" shall mean a per annum rate of interest equal
to the Prime Rate plus two and one-half percent (2.50%) per annum.
(c) Libor Rate. The definition of "Libor Rate" set forth
in Section 1.1 of the Loan Agreement is amended and restated in its
entirety to read as follows:
"LIBOR Rate" shall mean a per annum rate of interest equal to
LIBOR for the relevant Interest Period (rounded upward if necessary, to
the nearest 1/100 of 1.00%), which LIBOR Rate shall remain fixed during
such Interest Period.
(d) Maturity Date. The definition of "Maturity Date" set
forth in Section 1.1 of the Loan Agreement is amended and restated in
its entirety to read as follows:
"Maturity Date" shall mean January 14, 2005.
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(e) Revolving Interest Rate. The definition of "Revolving
Interest Rate" set forth in Section 1.1 of the Loan Agreement is
amended and restated in its entirety to read as follows:
"Revolving Interest Rate" shall mean, at the option of the
Borrower (exercised from time to time in accordance with this
Agreement), either (i) the Prime Rate plus the Applicable Margin or
(ii) the LIBOR Rate plus the Applicable Margin.
(f) Permitted Subordinated Bond Payments. The following
definition of "Permitted Subordinated Bond Payments" is added to
Section 1.1 of the Loan Agreement:
"Permitted Subordinated Bond Payments" shall mean payments or
redemptions by Borrower of the Subordinated Bonds which (i) do not
exceed $1,500,000 in the aggregate, (ii) are made on or prior to
December 31, 2003, and (iii) retire (or redeem) such Subordinated Bonds
at a discount of no less than 45%."
(g) Subordinated Bonds. The following definition of
"Subordinated Bonds" is added to Section 1.1 of the Loan Agreement:
"Subordinated Bonds" shall mean those certain 8 3/4% Senior
Subordinated Bonds due 2007 in an aggregate original principal amount
of $150,000,000.
3.2 Use of Proceeds. The following sentence is added at the end
of Section 2.1(a) of the Loan Agreement:
Permitted Subordinated Bond Payments may be made with proceeds from the
Revolving Loans.
3.3 New Section. A new Section 2.2 is added to the Loan Agreement
and shall read as follows:
2.2 Prepayments and Repayments When Loans Outstanding Exceed
$15,000,000. When the Loans outstanding from time to time hereunder
exceed $15,000,000, and subject to the other terms and conditions of
this Agreement, any Mandatory Prepayment, optional prepayment or
repayment of any Loans outstanding hereunder shall be applied, first,
to any Loan then outstanding that bears interest at the Revolving
Interest Rate plus the Tier 2 Applicable Margin, and, second, to any
Loan then outstanding that bears interest at the Revolving Interest
Rate, plus the Tier 1 Applicable Margin.
3.4 Section 6.1 (Collateral). The last sentence of Section 6.1 of
the Loan Agreement is amended and restated in its entirety to read as
follows:
"The Bank further agrees that in the event Borrower either
reduces the Revolving Loan Commitment or increases and maintains the
amount of Eligible Cash Collateral to an amount equal to the existing
Revolving Loan Commitment (as set out in Section 9.1(n) hereof) then
(i) the Bank shall terminate its Lien on all Collateral other than the
Cash Collateral Account and all monies on deposit therein, and (ii) all
Revolving Loans made
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thereafter shall bear interest at a Revolving Interest Rate to which
the Tier 1 Applicable Margin is applied."
SECTION 4
CONDITIONS PRECEDENT
4.1 Conditions Precedent. Concurrent with the execution and
delivery of this Amendment, Borrower shall deliver the following documents to
the Bank and/or shall satisfy the following conditions:
(a) Documentation. Copies of this Amendment duly
executed by the Borrower and each Guarantor, and consented to by GECC,
and copies of a duly executed amendment to the Term Facility Agreement,
in form and substance satisfactory to the Bank.
(b) Authority. Receipt by the Bank of (i) a certificate
of the secretary or assistant secretary of the Borrower certifying as
to resolutions or authorization of the Board of Directors of the
Borrower approving and adopting this Amendment and the transactions
contemplated herein and authorizing the execution, delivery and
performance hereof by Borrower and each Guarantor and (ii) an
incumbency certificate of Borrower and each Guarantor certified by a
secretary or assistant secretary of Borrower to be true and correct as
of the effective date of this Amendment.
(c) Fees. The payment by the Borrower of such fees to
the Bank as agreed to between the Borrower and the Bank and all
expenses of the Bank in connection with the negotiation, preparation,
execution and delivery of this Amendment and the other transactions
contemplated herein, including, without limitation, reasonable legal
fees and expenses.
SECTION 5
MISCELLANEOUS
5.1 Ratification of Loan Agreement and Loan Documents. The term
"Loan Agreement" and "Agreement" as used in each of the Loan Documents shall
hereafter mean the Loan Agreement as amended by this Amendment. Except as
expressly amended herein, the Loan Agreement and Loan Document are hereby
ratified and confirmed and shall remain in full force and effect according to
their respective terms.
5.2 Authority/Enforceability. Each of the Borrower, the
Guarantors and the Bank represents and warrants as follows:
(a) It has taken all necessary action to authorize the
execution, delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered
by such Person and constitutes such Person's legal, valid and binding
obligations, enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy,
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insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws affecting creditors' rights generally and
(ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or governmental
authority or third party is required in connection with the execution,
delivery or performance by such Person of this Amendment, except for
GECC's consent which has been or will be obtained before the Effective
Date.
5.3 Representation and Warranties. The Borrower represents and
warrants to the Bank that:
(a) The representations and warranties of the Borrower
set forth in Section 7 of the Loan Agreement are true and correct in
all material respects as of the date hereof except for those that
specifically relate to an earlier date.
(b) No event has occurred and is continuing which
constitutes an Event of Default or an event which, with the passage of
time or notice or both, would constitute an Event of Default, and
Borrower is in compliance with all of Borrower's obligations under the
Loan Agreement and the Loan Documents.
(c) The Collateral Documents continue to create a valid
security interest in, and Lien upon, the Collateral, in favor of the
Bank, which security interests and Liens are perfected in accordance
with the terms of the Collateral Documents and prior to all Liens,
except as otherwise specified in the Loan Documents.
(d) The Obligations are not reduced or modified by this
Amendment and are not subject to any offsets, defenses or
counterclaims.
5.4 Counterparts/Telecopy. This Amendment may be executed in any
number of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.
Delivery of executed counterparts by telecopy shall be effective as an original
and shall constitute a representation that an original will be delivered if
requested.
5.5 Miscellaneous. This Amendment shall be binding upon and
inure to the benefit of the parties and their respective successors and assigns.
No modification or amendment of any provision of this Amendment will be
effective unless specifically made in writing and duly signed by the party to be
bound thereby. No failure or delay on the part of any party to exercise any
right, power or privilege hereunder or under any instrument executed pursuant
hereto will operate as a waiver nor will any single or partial exercise of any
right, power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. To the extent that any of the
terms or provisions of this Amendment conflict with any of the terms or
provisions of the Loan Agreement, the terms of this Amendment govern.
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5.6 Further Assurances, The Borrower agrees to promptly take
such action, upon the request of the Bank, as is necessary to carry out the
intent of this Amendment.
5.7 GENERAL RELEASE. IN CONSIDERATION OF THE BANK ENTERING INTO
THIS AMENDMENT, THE BORROWER AND EACH GUARANTOR HEREBY RELEASE THE BANK AND THE
BANK'S OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, COUNSEL AND DIRECTORS FROM
ANY AND ALL ACTIONS, CAUSES OF ACTION, CLAIMS, DEMANDS, DAMAGES AND LIABILITIES
OF WHATEVER KIND OR NATURE, IN LAW OR IN EQUITY, NOW KNOWN OR UNKNOWN, SUSPECTED
OR UNSUSPECTED TO THE EXTENT THAT ANY OF THE FOREGOING ARISES FROM ANY ACTION OR
FAILURE TO ACT UNDER THE LOAN AGREEMENT OR UNDER THE OTHER LOAN DOCUMENTS ON OR
PRIOR TO THE EFFECTIVE DATE.
5.8 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
SECTION 6
RELEASE OF LIENS
6.1 Release of Liens. Upon the execution and delivery of
this Amendment and the satisfaction of the other conditions precedent set forth
herein and in the amendment to the Term Facility Agreement, the Bank will
release all Liens held by Bank which have attached or otherwise encumber the
57,950 shares of stock of Polymer Enterprises, Inc. held by Titan Investment
Corporation.
