EXHIBIT 10.70
WAIVER AND THIRD AMENDMENT TO SECURITIES PURCHASE AGREEMENTS
Reference is made to the Securities Purchase Agreements dated as of December 23,
1998 ( as amended, the "SPA") between the Companies (the "Companies"), and
Massachusetts Mutual Life Insurance Company, MassMutual Corporate Investors,
MassMutual Participation Investors, MassMutual Corporate Value Partners Limited,
National City Venture Corporation, and Great Lakes Capital Investments I L.L.C.
(together, the "Holders").
WHEREAS, Events of Default exist under Sections 14.7 (a)(ii) and 14.7 (b)(ii) of
the SPA; and
WHEREAS, the Companies and the Holders are desirous of waiving the existing
Events of Default and amending the SPA on the terms and conditions set forth
below.
NOW THEREFORE, in consideration of the mutual conditions and agreements set
forth in the SPA and herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Companies and the
Holders agree as follows:
1. Section 14.7(a)(ii) of the SPA is amended by replacing the dollar
limits for the periods ending, respectively, on March 31, 2001, June
30, 2001, September 30, 2001, and December 31, 2001 with the minimum
amount figures set forth below:
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PERIOD MINIMUM AMOUNT
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For the three months ending March 31, 2001 $ 2,550,000
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For the six months ending June 30, 2001 $ 6,525,000
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For the nine months ending September 30, 2001 $10,500,000
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For the twelve months ending December 31, 2001 $13,650,000
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2. Section 14.7(b)(ii) of the SPA is amended by replacing the
minimum ratios for the periods ending, respectively, on March
31, 2001, June 30, 2001, September 30, 2001, and December 31,
2001 with the minimum ratios set forth below:
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PERIOD MINIMUM RATIO
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For the three months ending March 31, 2001 0.45 to 1.00
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For the six months ending June 30, 2001 0.70 to 1.00
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For the nine months ending September 30, 2001 0.85 to 1.00
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For the twelve months ending December 31, 2001 0.85 to 1.00
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3. The Events of Default currently existing under Section
14.7(a)(ii) and Section 14.7 (b)(ii) of the SPA are hereby
waived.
4. The definition of "Consolidated EBITDA in Section 15.1 of the
SPA is hereby amended by deleting "December 31, 2001" and
replacing it with "October 31, 2002".
5. The definition of "Interest Expense" in Section 15.1 of the
SPA is hereby amended by inserting, immediately prior to the
period at the end of the defined term, the words "less
$232,539 in fees paid to Senior Lenders pursuant to the Waiver
and Fifth Amendment to Credit Agreement dated as of March
2001".
6. Pursuant to Section 14.6, the Companies and the Holders
acknowledge and agree that the equity securities issued
pursuant to the Capital Call Agreement may not be repurchased
or redeemed and that Section 4 of the Second Amendment to
Securities Purchase Agreement is hereby deleted in its
entirety.
7. The effectiveness of this Waiver and Third Amendment is
expressly subject to the following conditions:
a) The Companies shall have executed and delivered this
Waiver and Third Amendment to the Holders;
b) All proceedings taken in connection with the
transactions contemplated by this Waiver and Third
Amendment and all documents, instruments and other
legal matters incident thereto shall be satisfactory
to the Holders;
c) No Default or Event of Default shall have occurred
and be continuing;
d) The accuracy of the representations and warranties
set forth in Section 9 below; and
e) The Senior Loan Agreement shall have been amended in
a manner satisfactory to the Holders.
8. The capitalized terms used herein shall have the respective
meanings specified in the SPA unless otherwise defined herein
or if the context shall otherwise require.
9. To induce the Holders to enter into this Waiver and Third
Amendment, the Companies represent and warrant to the Holders
that the execution, delivery, and performance of this Waiver
and Third Amendment has been duly authorized by all requisite
corporate action on the part of each of the Companies and that
this Waiver and Third Amendment has been duly executed and
delivered by the Companies.
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10. Except as expressly modified herein, the terms and conditions
of the SPA are hereby ratified, confirmed and approved in all
respects.
11. This document shall be dated as of March 23, 2001.
ACCEPTED AND AGREED TO:
MASSACHUSETTS MUTUAL LIFE MASSMUTUAL CORPORATE VALUE
INSURANCE COMPANY PARTNERS LIMITED
By: Xxxxx X. Xxxxxx and Company By: Xxxxx X. Xxxxxx and Company
Incorporated, its Investment Manager Incorporated, under delegated authority
from Massachusetts Mutual Life Insurance
Company, its Investment Adviser
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxx
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By: Xxxxxxx X. Xxxxxx By: Xxxxxxx X. Xxxxxx
Its: Managing Director Its: Managing Director
MASSMUTUAL CORPORATE MASSMUTUAL PARTICIPATION
INVESTORS INVESTORS
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxxx Xxxxxx
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By: Vice President By: Vice President
Its: Vice President Its: Vice President
The foregoing is executed on behalf of Mass The foregoing is executed on behalf of
Mutual Corporate Investors, organized under MassMutual Participation Investors,
A Declaration of Trust, dated September 13, Organized under a Declaration of Trust
1985, as amended from time to time. The dated April 7, 1988, as amended from
obligations of such Trust are not personally time to time. The obligations of such
binding upon, nor shall resort be had to the Trust are not binding upon, nor shall
property of, any of the Trustees, shareholders, resort be had to the property of, any of the
officers, employees or agents of such Trust, but Trustees, shareholders, officers, employees,
the Trust's property only shall be bound. or agents of such Trust individually, but the
Trust's assets and property only shall be
bound
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National City Equity Partners
fka
NATIONAL CITY VENTURE GREAT LAKES CAPITAL
CORPORATION INVESTMENTS I, L.L.C.
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxxx
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By: Xxxxxxx X. Xxxxxxxx By: Xxxxxxx X. Xxxxxxxx
Its: Managing Director Its: Managing Director
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XXXX INTERNATIONAL HOLDINGS, INC. XXXX INDUSTRIES, INCORPORATED
/s/ Xxxxxx Vollmershausen /s/ Xxxxxx Vollmershausen
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By: Xxxxxx Vollmershausen By: Xxxxxx Vollmershausen
Its: President & CEO Its: President & CEO
DFM CORP. AUTO VENTSHADE COMPANY
s/ Xxxxxx Vollmershausen /s/ Xxxxxx Vollmershausen
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By: Xxxxxx Vollmershausen By: Xxxxxx Vollmershausen
Its: President Its: President
DEFLECTA-SHIELD CORPORATION SMITTYBILT, INC.
s/ Xxxxxx Vollmershausen /s/ Xxxxxx Vollmershausen
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By: Xxxxxx Vollmershausen By: Xxxxxx Vollmershausen
Its: President & CEO ts: President
BELMOR AUTOTRON CORP.
s/ Xxxxxx Vollmershausen
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By: Xxxxxx Vollmershausen
Its: Chief Executive Officer
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