EXHIBIT 10.3
AMENDMENT NO. 1 TO REVOLVING CREDIT AND TERM LOAN AGREEMENT
This Amendment dated as of December 31, 1998 by and among the lenders
signatories hereto, Comerica Bank as agent for the Banks (in such capacity,
"Agent"), Trim Systems Operating Corp., a Delaware corporation ("Holdings"),
Tempress, Inc., a Washington corporation ("Tempress") and Trim Systems, LLC, a
Delaware limited liability company ("Trim").
RECITALS
A. Holdings, Tempress, Trim, Agent and the lenders signatories
hereto (other than the Swing Line Bank) entered into that certain Revolving
Credit and Term Loan Agreement dated as of October 29, 1998 ("Agreement").
B. The parties desire to amend the Agreement to provide a swing line
facility for the benefit of Holdings, Tempress and Trim.
The parties agree that the Agreement is amended as follows:
1. The definition of "Advance(s)" set forth in Article 1 of the
Agreement is amended to read as follows:
"'Advance(s)' shall mean, as the context may indicate, a
borrowing requested by Borrowers and made by the Banks (other
than the Swing Line Bank) under Section 2.1 hereof or
requested by the Borrowers and made by the Banks (other than
the Swing Line Bank) under Section 4A.1 hereof or requested by
the Borrowers and made by the Banks (other than the Swing Line
Bank) under Section 4B.1 hereof or requested by the Borrowers
and made by the Swing Line Bank under Section 4c.1 hereof,
including without limitation any readvance, refunding or
conversion of such borrowing pursuant to Section 2.3, 4A.3 or
4B.3 hereof, any advance in respect to the Letter of Credit
under Section 3.6 hereof (including without limitation the
unreimbursed amount of any draws under any Letter of Credit)
and shall include, as applicable, a Eurocurrency-based Advance
and Prime-based Advance."
2. The definition of "Banks" set forth in Article 1 of the Agreement
is amended to read as follows:
"'Banks' shall mean Comerica Bank and such other financial
institutions from time to me parties hereto as lenders and
shall include the Revolving/Term Banks, the Swing Line Bank
and the Issuing Bank and any assignee which becomes a Bank
pursuant to Section 14.8 hereof."
3. The definition of "Majority Banks" set forth in Article 1 the
Agreement is amended to read as follows:
"'Majority Banks' shall mean at any time Banks holding
66-2/3% of the aggregated principal amount of the
Indebtedness then outstanding under the Notes (provided that,
for purposes of determining Majority Banks hereunder,
indebtedness outstanding under Swing Line Note shall be
allocated among the Banks based upon their respective
Percentages), or, if not Indebtedness is then outstanding.
Banks holding 66-2/3% of the Percentages; provided however,
so long as there are only three (3) Banks holding the same
Percentages as set forth on Schedule 1.2 on the Effective
Date, "Majority Banks" shall mean all of the Banks."
4. The definition of "Note(s): set forth in Article 1 the Agreement is
amended to read as follows:
"'Notes' shall mean the Revolving Credit Notes, the Term
Notes and the Swing Line Note."
5. The following definitions are added to the Agreement.
"'Request for Swing Line Advance' shall mean a Request for
Swing Line Advance issued by Borrowers under Section 4C.3 of
this Agreement in the form attached hereto as Exhibit N, as
amended or otherwise modified."
"'Revolving/Term Bank' shall mean each Bank which is a lender
of the Revolving Credit under Article 2 hereof or the Term
Loans under Article 4A or Article 4B hereof, and their
successors and assigns."
"'Swing Line Advance' shall mean a borrowing made by Swing
Line Bank to Borrowers pursuant to Section 4C.1 hereof."
"'Swing Line Commitment' shall mean Three Million Dollars
($3,000,000), subject to termination pursuant to Section 10.2
hereof."
2
" 'Swing Line Credit' shall mean the revolving credit loan to
be advanced to the Borrowers by the Swing Line Bank pursuant
to Article 4C hereof, in an aggregate amount (subject to the
terms hereof), not to exceed, at any one time outstanding, the
Swing Line Commitment."
" 'Swing Line Bank' shall mean Comerica Bank, in its capacity
as lender under Article 4C of this Agreement, and its
successors and assigns."
" 'Swing Line Note' shall mean the swing line note described
in Section 4C.1 hereof, made by Borrowers to Swing Line Bank
in the form annexed hereto as Exhibit O, as such Note may be
amended or supplemented from time to time, and any notes
issued in substitution, replacement or renewal thereof from
time to time."
6. Section 2.3(c) of the Agreement is amended to read as follows:
"(c) the principal amount of such Revolving Credit Advance,
plus the principal amount of all other Revolving Credit
Advances and Swing Line Advances then outstanding hereunder,
plus the Letter of Credit Obligations, less the principal
amount of any outstanding Swing Line Advance or Revolving
Credit Advance to be refunded by the requested Revolving
Credit Advance, shall not excess the lesser of the then
applicable (i) Revolving Credit Aggregate Commitment and (ii)
Borrowing Base."
7. Sections 2.6, 2.7 and 2.8 of the Agreement are amended to read as
follows:
"2.6 Revolving Credit Commitment Fee. From the Effective
Date to the Revolving Credit Maturity Date, the Borrowers
shall pay to the Agent for distribution to the Banks pro-rata
in accordance with their respective percentages, a Revolving
Credit Commitment Fee quarterly in arrears commencing January
1, 1999 (in respect of the prior fiscal quarter or portion
thereof), and on the first day of each fiscal quarter
thereafter. The Revolving Credit Commitment Fee shall be equal
to the sum of the Applicable Commitment Fee Percentage times
the daily amount by which the Revolving Credit Aggregate
Commitment then in effect less the aggregate daily undrawn
amount of any Letters of Credit exceeds the principal amount
of Advances outstanding from time to time under the Revolving
Credit and the aggregate principal amount of all Swing Line
Advances outstanding from time to time, computed on a daily
basis. The Revolving Credit Commitment Fee shall be computed
on the basis of a year of three hundred sixty (360) days and
assessed for the actual number of days elapsed. Whenever any
payment of the Revolving Credit Commitment Fee shall be due on
a day
3
which is not a Business Day, the date for payment thereof
shall be extended to the next Business Day. Upon receipt of
such payment, Agent shall make prompt payment to each
Revolving/Term Bank of its share of the Revolving Credit
Commitment Fee based upon its respective Percentage. It is
expressly understood that the Revolving Credit Commitment Fees
described in this Section are not refundable under any
circumstances."
"2.7 Reduction of Indebtedness; Revolving Credit Aggregate
Commitment. If at any time and for any reason the aggregate
principal amount of Revolving Credit Advances and Swing Line
Advances hereunder to Borrowers, plus the Letter of Credit
obligations which shall be outstanding at such time, shall
exceed the lesser of the then applicable (i) Revolving Credit
Aggregate Commitment and (ii) Borrowing Base, the Borrowers
shall immediately reduce any pending request for an Advance on
such day by the amount of such excess and, to the extent any
excess remains thereafter, immediately repay an amount of the
Indebtedness equal to such excess and, to the extent such
Indebtedness consists of Letter of Credit Obligations, provide
cash collateral on the basis set forth in Section 10.2 hereof.
Borrowers acknowledge that, in connection with any repayment
required hereunder, it shall also be responsible for the
reimbursement of any prepayment or other costs required under
Section 12.1 hereof; provided, however, that Borrowers may, in
their discretion, in order to reduce any such prepayment costs
and expenses, first prepay such portion of the Indebtedness
then carried as a Prime-based Advance, if any."
"2.8 Optional Reduction or Termination of Revolving Credit
Aggregate Commitment. The Borrowers may, upon at least five
(5) Business Days' prior written notice to Agent, permanently
reduce the Revolving Credit Aggregate Commitment in whole at
any time, or in part from time to time, without premium or
penalty, provided that: (i) each partial reduction of the
Revolving Credit Aggregate Commitment shall be in an aggregate
amount equal to at least One Million Dollars ($1,000,000) or a
larger integral multiple of One Million Dollars ($1,000,000);
(ii) each reduction shall be accompanied by the payment of the
Revolving Credit Commitment Fee, if any, accrued to the date
of such reduction; (iii) the Borrowers shall prepay in
accordance with the terms hereof the amount, if any, by which
the sum of the aggregate unpaid principal amount of Revolving
Credit Advances, plus the Swing Line Advances plus the Letter
of Credit Obligations, exceeds the then applicable Revolving
Credit Aggregate Commitment, taking into account the aforesaid
reductions thereof, together with accrued but unpaid interest
on the principal amount of such prepaid Advances to the date
of prepayment; and (iv) no reduction shall reduce the amount
of the Revolving Credit Aggregate Commitment to an amount
which is less than the Letter of Credit Obligations at such
time. Reductions of the Revolving Credit Aggregate Commitment
and
4
and accompanying prepayments of the Revolving Credit Notes
shall be distributed by Agent to each Revolving/Term Bank in
accordance with such Bank's Percentage thereof, and will not
be available for reinstatement by or readvance to Borrowers
and any accompanying prepayments of the Swing Line Note shall
be distributed by Agent to the Swing Line Bank and will not be
available for reinstatement by or readvance to Borrowers. Any
reductions of the Revolving Credit Aggregate Commitment
hereunder shall reduce each Bank's portion thereof
proportionately (based upon the applicable Percentages), and
shall be permanent and irrevocable. Any payment made pursuant
to this Section shall be applied first to outstanding
Prime-based Advances under the Revolving Credit, next to Swing
Line Advances and next to Eurocurrency-based Advances."
8. Article 4C is added to the Agreement as follows:
"4C. SWING LINE CREDIT
"4C.1 Swing Line Advances. The Swing Line Bank shall, on the
terms and subject to the conditions hereinafter set forth
(including Section 4C.3), make one or more Advances (each such
Advance being a "Swing Line Advance") to Borrowers from time
to time on any Business Day during the period from the date
hereof to (but excluding) the Revolving Credit Maturity Date
in an aggregate amount not to exceed the Swing Line Commitment
at any time outstanding; provided, however, that after giving
effect to all Swing Line Advances and all Revolving Credit
Advances requested to be made on such date, the sum of the
aggregate principal amount of all outstanding Revolving Credit
Advances, Swing Line Advances and Letter of Credit Obligations
shall not exceed the lesser of the then applicable (a)
Revolving Credit Aggregate Commitment and (b) Borrowing Base.
All Swing Line Advances shall be evidenced by the Swing Line
Note, under which Advances, repayments and readvances may be
made, subject to the terms and conditions of this Agreement.
Each Swing Line Advance shall mature and the principal amount
thereof shall be due and payable by Borrowers on the last day
of the Interest Period applicable thereto. In no event
whatsoever shall any outstanding Swing Line Advance be deemed
to reduce, modify or affect any Bank's commitment to make
Revolving Credit Advances based upon its Percentage.
"4C.2 Accrual of Interest; Margin Adjustments. The Swing Line
Note, and all principal and interest outstanding thereunder,
shall mature and become due and payable in full on the
Revolving Credit Maturity Date. Each Swing Line Advance shall,
from time to time after the date of such Advance, bear
interest at the Prime-based Rate. The amount and date of each
Swing Line Advance, its Applicable Interest Rate and the
amount and date of any
5
repayment shall be noted on Agent's records, which records
will be conclusive evidence thereof, absent manifest error;
provided, however, that any failure by the Agent to record
any such information shall not relieve Borrowers of their
obligation to repay the outstanding principal amount of such
Advance, all interest accrued thereon and any amount payable
with respect thereto in accordance with the terms of this
Agreement and the Loan Documents.
"4C.3 Requests for Swing Line Advances. Borrowers may
request a Swing Line Advance only after delivery to Swing
Line Bank of a Request for Swing Line Advance expected by a
person authorized by each of the Borrowers to make such
requests on behalf of such Borrower, subject to the following
and to the remaining provisions hereof:
(a) each such Request for Swing Line Advance shall
set forth the information required on the Request for Swing
Line Advance including without limitation the proposed date
of Swing Line Advance, which must be a Business Day;
(b) each such Request for Swing Line Advance shall
be delivered to Swing Line Bank by 12:00 p.m. (Detroit time)
on the proposed date of the Swing Line Advance;
(c) the principal amount of such requested Swing
Line Advance, plus the principal amount of all other Revolving
Credit Advances and Swing Line Advance then outstanding
hereunder, plus the Letter of Credit Obligations, shall not
exceed the lesser of the then applicable (i) Revolving Credit
Aggregate Commitment and (ii) Borrowing Base;
(d) each Request for Swing Line Advance, once
delivered to Swing Line Bank, shall not be revocable by
Borrowers, and shall constitute a certification by the
Borrowers as of the date thereof that:
(i) to the best knowledge of Borrowers all
conditions to Advances have been
satisfied;
(ii) there is no Default or Event of
Default in existence, and none shall
exist upon the making of the Swing
Line Advance; and
(iii) the representations and warranties
contained in this Agreement and the
Loan Documents are true and correct in
all material respects and shall be
true and
6
correct in all material respects as of and
immediately after the making of the Swing
Line Advance.
Swing Line Bank shall promptly deliver to Agent by telecopier
a copy of any Request for Swing Line Advance received.
Swing Line Bank, may, at its option, lend under this
Article 4C upon the telephone request of an authorized officer
of each of the Borrowers and, in the event Swing Line Bank
makes any such Advance upon a telephone request, the
requesting officer(s) shall, if so requested by Swing Line
Bank, fax to Swing Line Bank, on the same day as such
telephone request, a Request for Swing Line Advance. Borrowers
hereby authorize Swing Line Bank to disburse Advances under
this Article 4C pursuant to the telephone instructions of any
person purporting to be a person identified by name on a
written list of persons authorized by the Borrowers to make
Requests for foregoing. Borrowers acknowledge that Borrowers
shall bear all risk of loss resulting from disbursements made
upon any telephone request. Each telephone request for an
Advance shall constitute a certification of the matters set
forth in the Request for Swing Line Advance form as of the
date of such requested Advance.
At the option of Swing Line Bank, in lieu of written
Requests for Swing Line Advances, Borrowers may utilize Swing
Line Bank's "Sweep to Loan" automated system for obtaining
Swing Line Advances. Each time a Swing Line Advance is made
using the "Sweep to Loan" system, it shall constitute a
certification by Borrowers of the matters set forth in the
Request for Swing Line Advance form as of such date, Swing
Line Bank may revoke Borrowers' privilege to use the "Sweep
to Loan" system at any time and after any such revocation,
the regular procedures set forth here in shall apply.
"4C.4 Disbursement of Swing Line Advances. Subject to
submission of an executed Request for Swing Line Advance by
Borrowers without exceptions noted in the compliance
certification therein and to the other terms and conditions
hereof, Swing Line Bank shall make available to Borrowers the
amount so requested, in same day funds, not later than
4:00 p.m. (Detroit time) on the date of such Swing Line
Advance by credit to an account of Borrowers maintained with
Swing Line Bank or to such other account or third party as
Borrowers may reasonably direct. Swing Line Bank shall
promptly notify Agent of any Swing Line Advance by telephone,
telex or telecopier.
7
"4C.5 Refunding of or Participation Interest in
Swing Line Advances.
(a) The Swing Line Bank, at any time in its sole and
absolute discretion, may on behalf of the Borrowers (which
hereby irrevocably direct the Swing Line Bank to act on their
behalf) request each Revolving/Term Bank (including the Swing
Line Bank in its capacity as a Revolving/Term Bank) to make a
Prime-based Advance of the Revolving Credit in an amount equal
to such Revolving/Term Bank's Percentage of the principal
amount of the Swing Line Advances (the "Refunded Swing Line
Advances") outstanding on the date such notice is given;
provided that (i) at any time the aggregate outstanding
principal amount of all Swing Line Advances exceeds the Swing
Line Commitment, then the Agent shall, on behalf of the
Borrowers (which hereby irrevocably direct the Agent to act on
their behalf), promptly request each Revolving/Term Bank
(including the Swing Line Bank) to make a Revolving Credit
Advance in an amount equal to such Revolving/Term Bank's
Percentage of the principal amount of such outstanding Swing
Line Advance, and (ii) Swing Line Advances may be prepaid by
Borrowers in accordance with the provisions of Section 5.6
hereof. Unless any of the events described in Section 10.1(j)
shall have occurred (in which event the procedures of
paragraph (b) of this Section 4C.5 shall apply) and regardless
of whether the conditions precedent set forth in this
Agreement to the making of a Revolving Credit Advance are then
satisfied, each Revolving/Term Bank shall make the proceeds of
its Revolving Credit Advance available to the Agent for the
ratable benefit of the Swing Line Bank at the office of the
Agent specified in Section 2.4(a) prior to 11:00 a.m. Detroit
time, in funds immediately available on the Business Day next
succeeding the date such notice is given. The proceeds of such
Revolving Credit Advances shall be immediately applied to
repay the Refunded Swing Line Advances.
"(b) If, prior to the making of a Revolving Credit
Advance pursuant to paragraph (a) of this Section 4C.5, one
of the events described in Section 10.1(j) shall have
occurred, each Revolving/Term Bank will, on the date such
Revolving Credit Advance was to have been made, purchase
from the Swing Line Bank an undivided participating interest
in the Refunded Swing Line Bank an undivided participating
interest in the Refunded Swing Line Advance. Each such Bank
will immediately transfer to the Agent, in immediately
available funds, the amount of its participation and upon
receipt thereof the Agent will deliver to such Bank a Swing
Line Bank Participation Certificate in the form of Exhibit P
dated the date of receipt of such funds and in such amount.
"(c) Each Revolving/Term Bank's obligation to make
Revolving Credit Advances and to purchase participation
interests in accordance with clauses (a) and (b) above shall
be absolute and unconditional and shall not
8
be affected by any circumstance, including, without
limitation, (i) any setoff, counterclaim, recoupment, defense
or other right which such Bank may have against Swing Line
Bank, any of the Borrowers or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of any Default
or Event of Default; (iii) any adverse change in the condition
(financial or otherwise) of any of the Borrowers or any other
Person; (iv) any breach of this Agreement by any of the
Borrowers or any other Person; (v) any inability of any of the
Borrowers to satisfy the conditions precedent to borrowing set
forth in this Agreement on the date upon which such
participating interest is to be purchased or (vi) any other
circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing. If any Bank does not make
available to the Agent the amount required pursuant to clause
(a) or (b) above, as the case may be, the Agent shall be
entitled to recover such amount on demand from such Bank,
together with interest thereon for each day from the date of
non-payment until such amount is paid in full at the Federal
Funds Effective Rate for the first two Business Days and at
the Alternate Base Rate thereafter.
"Notwithstanding the foregoing however, no Bank shall
be required to make any Revolving Credit Advance to refund a
Swing Line Advance or to purchase a participation in a Swing
Line Advance if prior to the making of such Swing Line Advance
by the Swing Line Bank, the Agent received written notice from
a Bank specifically stating that such Bank believed that one
or more of the conditions precedent to the making of Swing
Line Advance(s) had not been met and, in fact, such conditions
precedent were not satisfied at the time of the making of such
Advance; provided, however that the obligation of the
Revolving/Term Banks to make such Revolving Credit Advance or
purchase a participation in such Swing Line Advance shall be
acquired upon the earlier of occur of (x) the date on which
the Bank notifies the Agent that such prior notice is
withdrawn and (y) the date of which all conditions precedent
to the making of such Swing Line Advance have been satisfied
(or waived by the Majority Banks or all Banks, as
applicable)."
9. The first sentence of Section 5.6 of the Agreement is amended to
read as follows:
"Borrowers may prepay all or part of the outstanding balance
of any Prime-based Advance(s) or Eurocurrency-based Advance(s)
at any time."
10. Section 11.1(d) of the Agreement is amended to read as follows:
"(d) All payments to be made by Borrowers under this
Agreement or any of the Notes (including without limitation
payments under the Swing Line Note) shall be made without
set-off or counterclaim, as aforesaid, and,
9
subject to compliance by the Banks with Section 14.13,
without deduction for or on account of any present or future
withholding or other taxes of any nature imposed by any
governmental authority or of any political subdivision
thereof or any federation or organization of which such
governmental authority may at the time of payment be a
member, unless Borrowers are compelled by law to make payment
subject to such tax. In such event, Borrowers shall:
"(i) pay to the Agent for Agent's own
account and/or, as the case may be, for
the account of the Banks (and in the
case of Advances of the Swing Line, pay
to the Swing Line Bank which funded such
Advances) such additional amounts as may
be necessary to ensure that the Agent
and/or such Bank or Banks receive a net
amount equal to the full amount which
would have been receivable had payment
not been made subject to such tax; and
(ii) remit such tax to the relevant taxing
authorities according to applicable law,
and send to the Agent or the applicable
Bank (including the Swing Line Bank) or
Banks, as the case may be, such
certificates or certified copy receipts
as the Agent or such Bank or Banks shall
reasonable require as proof of the
payment by the Borrowers, of any such
taxes payable by the Borrowers."
11. The first sentence of Section 12.8 of the Agreement is amended to
read as follows:
"If (i) the obligation of any Bank to make Eurocurrency-based
Advances has been suspended for pursuant to Section 12.3 or
Section 12.4 (ii) any Bank has demanded compensation under
Section 12.5, 12.7 or 3.4(b), or (iii) any Bank has
wrongfully failed to fund its Percentage of any requested
Advance under Section 2.4(c) or Section 3.6, (in each case, an
"Affected Lender"). Borrower shall have the right, with the
assistance Agent, to seek a substitute Lender or Lenders
(which may be one or more of the Banks (the "Purchasing
Lender" or "Purchasing Lenders") to purchase the Notes and
assume the Commitment (including without limitation its
participation in Swing Line Advances and Letters of Credit)
under the Agreement of such Affected Lender."
10
12. Section 14.11 of the Agreement is amended to read as follows:
"14.11 Amendment and Waiver. No amendment or waiver of any
provision of this Agreement or any other Loan Document, nor
consent to any departure by Borrowers, the Parent or any
Subsidiary therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Majority Banks
(or by the Agent at the written request of the Majority Banks)
or, if this Agreement expressly so requires with respect to
the subject matter thereof, by all Banks (and, with respect to
any amendments to this Agreement or the other Loan Documents,
by Borrowers, the Parent or the Subsidiaries which are
signatories thereto), and then such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment,
waiver or consent shall, unless in writing and signed by all
the Banks, do any of the following: (a) increase any Bank's
commitments hereunder, (b) reduce the principal of, or
interest on, the Notes or any Fees or other amounts payable
hereunder, (c) postpone any date fixed for any payment of
principal of, or interest on, the Notes or any Fees or other
amounts payable hereunder, (d) waive any Event of Default
specified in Sections 10.1(a) or (b) hereof, (e) except as
expressly permitted hereunder, or under the Collateral
Documents, release or defer the granting or perfecting of a
lien or security interest in any Collateral or release any
guaranty or similar undertaking provided by any Person
except as shall be otherwise expressly permitted in this
Agreement or any other Loan Document, provided however that
Agent shall be entitled to release any Collateral which any
Borrower or any Subsidiary is permitted to sell or transfer
under the terms of this Agreement or the other Loan Documents
without notice to or any further action or consent of the
Banks; (f) terminate or modify any indemnity provided to the
Banks hereunder or under the other Loan Documents, except as
shall be otherwise expressly provided in this Agreement or any
other Loan Document, (g) take any action which requires the
approval or consent of all Banks pursuant to the terms of this
Agreement or any other Loan Document, (h) change the
definition of "Majority Banks" or this Section 14.11; provided
further, that no amendment, waiver, or consent shall, unless
in writing and signed by the Agent in addition to all the
Banks, affect the rights or duties of the Agent under this
Agreement or any other Loan Document; and provided further,
that no amendment, waiver or consent shall, unless in writing
signed by the Swing Line Bank, do any of the following: (x)
reduce the principal of, or interest on, the Swing Line Note
or (y) postpone any date fixed for any payment of principal of
or interest on, the Swing Line Note. All references in this
Agreement to "Banks" or "the Banks" shall refer to all Banks,
unless expressly stated to refer to Majority Banks."
11
13. Section 14.16 of the Agreement is amended to read as follow:
"14.16 "Complete Agreement; Conflicts. This Agreement, the
Notes, any Requests for Revolving Credit Advance, Requests
for Swing Line Advance and Term Loan requests hereunder, and
the Loan Documents contained in the entire Agreement of the
parties hereto superseding all prior agreements, discussions
and understandings relating to the subject matter hereof, and
none of the parties shall be bound by anything not expressed
in writing. In the event of any conflict between the terms of
this Agreement and the other Loan Documents, this Agreement
shall govern."
14. All references to the term "Bank" or "Banks" (but not to the term
"Majority Banks") in Section 2.1, 2.3, 2.4, 2.9, 2.10, 4A.1, 4A.2, 4A.3, 4B.1,
4B.2, 4B.3, 5.6, 5.7 and 5.8 of the Agreement shall mean the Revolving/Term
Banks.
15. Exhibits N, O, and P are added to the Agreement in the form
annexed hereto.
16. The above amendments shall be effective as of the date hereof
upon issuance by Borrowers of the Swing Line Note and delivery by Borrowers to
Agent of all of the documents set forth on the closing agenda annexed hereto.
17. Except as expressly modified hereby, all the terms of and
conditions of the Agreement shall remain in full force and effect.
18. Borrowers hereby represent and warrant 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 powers, had been duly authorized, are not
in contravention of law or the terms of each of the Borrowers' Articles of
Incorporation or Bylaws or Articles of Organization or Operating Agreement, as
applicable, 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 representations and warranties of Borrowers
set forth in Sections 7.1 through 7.17 and 7.19 through 7.23 of the Agreement
are true and correct, in all material respects on and as of the date hereof with
the same force and effect as if made on and as of the date hereof; (c) the
representations and warranties of Borrowers set forth in Section 7.18 of the
Agreement are true and correct in all material respects as of the date hereof
with respect to the most recent financial statements furnished to the Bank by
Borrowers in accordance with Section 8.1 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 and Event of Default under the Agreement, has
occurred and is continuing as of the date hereof.
19. This Amendment may be signed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument.
12
WITNESS the due execution hereof as of the day and year first above
written.
COMERICA BANK, TRIM SYSTEMS OPERATING CORP.
as Agent
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
----------------- -------------------------
Its: Vice President Its: Vice President
TRIM SYSTEMS, LLC
By: /s/ [ILLEGIBLE]
-------------------------
Its: Vice President
TEMPRESS, INC.
By: /s/ [ILLEGIBLE]
-------------------------
Its: Vice President
REVOLVING/TERM BANKS: COMMERICA BANK
By: /s/ [ILLEGIBLE]
-------------------------
Its: Vice President
13
THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ [ILLEGIBLE]
-------------------------------
Its: V.P.
-------------------------------
U.S. BANK NATIONAL ASSOCIATION
By: /s/ [ILLEGIBLE]
-------------------------------
Its: Vice President
-------------------------------
SWING LINE BANK: COMERICA BANK
By: /s/ [ILLEGIBLE]
-------------------------------
Its: Vice President
-------------------------------
14
EXHIBIT "N"
REQUEST FOR SWING LINE ADVANCE
No. Dated:
-------------- ----------------
To: Comerica Bank, Swing Line Bank
Re: Revolving Credit Agreement by and among Comerica Bank, as Agent, the
lenders from time to time parties thereto (collectively, "Banks"), Trim
Systems Operating Corp., Tempress, Inc. and Trim Systems LLC (collectively,
"Companies") dated as of October 29, 1998 (as amended from time to time, the
"Agreement").
Pursuant to the Agreement, Companies request a Swing Line Advance from
the Swing Line Bank as follows:
A. Date of Advance:
----------------
B. Amount of Advance:
$
----------------
[ ] Comerica Bank Account No.
----------------
[ ] Other:
-----------------------------------
-----------------------------------
C. Availability:
1. Principal amount of requested Swing Line Advance (new $
money only): -------------
2. Principal amount of all Revolving Advances outstanding $
on the date of this Request: -------------
3. Principal amount of all Swing Line Advances outstanding $
on the date of this Request: -------------
4. Aggregate undrawn portion of Letter of Credit $
outstanding on the date of this Request: -------------
5. Aggregate face amount of all Letters of Credit requested $
but not yet issued on the date of this Request: -------------
6. Sum of Items 2 through 5: $
-------------
7. Revolving Credit Aggregate Commitment in effect on the $
date of this Request: -------------
8. Borrowing Base as of the most recently delivered $
certificate: -------------
9. Lesser of Items 7 and 8: $
-------------
10. Item 9 minus Item 6 (Availability): Item I must be less $
than Item 10 -------------
Companies certify to the matters specified in Section 4.3(e) of the
Agreement.
TRIM SYSTEMS OPERATING CORP.
By:
--------------------------------
Its:
--------------------------------
TEMPRESS, INC.
By:
--------------------------------
Its:
--------------------------------
TRIM SYSTEMS LLC
By:
--------------------------------
Its:
--------------------------------
Swing Line Bank Approval:
--------
2
EXHIBIT "O"
SWING LINE NOTE
$3,000,000 December __, 1998
On the Revolving Credit Maturity Date, FOR VALUE RECEIVED, Trim
Systems Operating Corp., a Delaware corporation, Tempress, Inc., a Washington
corporation and Trim Systems LLC, a Delaware limited liability company
(collectively, "Companies") promise to pay to the order of Comerica Bank
("Swing Line Bank") at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, in care of
Agent, in lawful money of the United States of America, the sum of Three
Million Dollars ($3,000,000), or so much of said sum as may from time to time
have been advanced and then be outstanding hereunder pursuant to Article 4C of
the Revolving Credit and Term Loan Agreement dated as of October 29, 1998,
executed by and among the Companies, certain banks, including the Swing Line
Bank, and Comerica Bank as Agent for such banks, as the same may be amended
from time to time (the "Agreement"), together with interest thereon as
hereinafter set forth.
The unpaid principal indebtedness from time to time outstanding under
this Note shall be due and payable on the Revolving Credit Maturity Date or as
otherwise set forth in the Agreement.
Each of the Swing Line Advances made hereunder shall bear interest at
the Prime-based Rate from time to time applicable thereto under the Agreement
or as otherwise determined thereunder, and interest shall be computed, assessed
and payable as set forth in the Agreement.
This Note is a note under which advances, repayments and readvances
may be made from time to time, but only in accordance with the terms and
conditions of the Agreement. This Note evidences borrowings under, is subject
to, is secured in accordance with, and may be accelerated or matured under, the
terms of the Agreement, to which reference is hereby made. Definitions and
terms of the Agreement are hereby incorporated by reference herein.
This Note shall be interpreted and the rights of the parties hereunder
shall be determined under the laws of, and enforceable in, the State of
Michigan (without regard to its conflict of laws provisions).
Companies hereby waive 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.
Nothing herein shall limit any right granted Bank by any other
instrument or by law.
TRIM SYSTEMS OPERATING CORP.
By: ________________________
Its: _______________________
TEMPRESS, INC.
By: ________________________
Its: _______________________
TRIM SYSTEMS LLC
By: ________________________
Its: _______________________
2
EXHIBIT "P"
FORM OF
SWING LINE LOAN PARTICIPATION CERTIFICATE
__________, 19__
[Name of Bank]
____________________
____________________
Ladies and Gentlemen:
Pursuant to Section 4C.5 of the Revolving Credit and Term Loan
agreement dated as of October 29, 1998, among Trim Systems Operating Corp.,
Tempress, Inc., Trim Systems LLC, the Banks named therein and Comerica Bank, as
Agent, the undersigned hereby acknowledges receipt from you of $___________ as
payment for a participating interest in the following Swing Line Advance:
Date of Swing Line Advance: _______________________________
Principal Amount of Swing Line Advance: ___________________
The participation evidenced by this certificate shall be subject to the terms
and conditions of the Revolving Credit and Term Loan Agreement including
without limitation Section 4C.5(b) thereof.
Very truly yours,
COMERICA BANK, as Agent
By: _________________________________
Its: ________________________________
SWING LINE NOTE
$3,000,000 December , 1998
On the Revolving Credit Maturity Date, FOR VALUE RECEIVED, Trim
Systems Operating Corp., a Delaware corporation, Tempress, Inc., a Washington
corporation and Trim Systems LLC, a Delaware limited liability company
(collectively, "Companies") promise to pay to the order of Comerica Bank
("Swing Line Bank") at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, in care of
Agent, in lawful money of the United States of America, the sum of Three
Million Dollars ($3,000,000), or so much of said sum as may from time to time
have been advanced and then be outstanding hereunder pursuant to Article 4C of
the Revolving Credit and Term Loan Agreement dated as of October 29, 1998,
executed by and among the Companies, certain banks, including the Swing Line
Bank, and Comerica Bank as Agent for such banks, as the same may be amended
from time to time (the "Agreement"), together with interest thereon as
hereinafter set forth.
The unpaid principal indebtedness from time to time outstanding under
this Note shall be due and payable on the Revolving Credit Maturity Date or as
otherwise set forth in the Agreement.
Each of the Swing Line Advances made hereunder shall bear interest at
the Prime-based Rate from time to time applicable thereto under the Agreement
or as otherwise determined thereunder, and interest shall be computed, assessed
and payable as set forth in the Agreement.
This Note is a note under which advances, repayments and readvances
may be made from time to time, but only in accordance with the terms and
conditions of the Agreement. This Note evidences borrowings under, is subject
to, is secured in accordance with, and may be accelerated or matured under, the
terms of the Agreement, to which reference is hereby made. Definitions and terms
of the Agreement are hereby incorporated by reference herein.
This Note shall be interpreted and the rights of the parties hereunder
shall be determined under the laws of, and enforceable in, the State of
Michigan (without regard to its conflict of laws provisions).
Companies hereby waive 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.
Nothing herein shall limit any right granted Bank by any other
instrument or by law.
TRIM SYSTEMS OPERATING CORP.
By:__________________________
Its:_________________________
TEMPRESS, INC.
By:___________________________
Its:__________________________
TRIM SYSTEMS LLC
By:__________________________
Its:_________________________
2
