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Exhibit 4.4(d)
SECOND AMENDMENT TO CREDIT AGREEMENT
This Amendment is made as of the 12th day of February, 1997, by and
between CRAGAR INDUSTRIES, INC., a Delaware corporation the "Borrower"), and
NORWEST BUSINESS CREDIT, INC., a Minnesota corporation (the "Lender").
Recitals
The Borrower and the Lender have entered into the Credit and Security
Agreement dated as of April 14, 1995, as amended by that certain First Amendment
to Credit Agreement dated as of September I9, 1996 (collectively, the "Credit
Agreement").
The Lender has agreed to make certain loan advances to the Borrower and
to issue or cause to be issued certain letters of credit for the account of the
Borrower pursuant to the terms and conditions set forth in the Credit Agreement.
The loan advances under the Credit Agreement are evidenced by the
Borrower's promissory note dated as of April 14, 1995, in the maximum principal
amount of $9,500,000.00 and payable to the order of the Lender (the "Note").
All indebtness of the Borrower to the Lender is secured pursuant to the
terms of the Credit Agreement and all other Security Documents as defined
therein (collectively, the "Security Documents"). Xxxxxxx L, Xxxxxxxxx
("Xxxxxxxxx") has entered into that certain Support Agreement with the Borrower
and the Lender dated as of April 14, 1995.
The Borrower has requested that certain amendments be made to the
Credit Agreement which the Lender is willing to make pursuant to the terms and
conditions set forth herein.
Agreements
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, it is agreed as follows:
1. Terms used in this Amendment which are defined in the Credit
Agreement shall have the same meanings as defined therein, unless otherwise
defined herein.
2. Prior to the date of this Amendment, the Borrower has, for the
period ending September 30, l996, failed to maintain the average minimum debt
service coverage ratio required by Section 6.12 of the Credit Agreement, the
minimum book Adjusted Net Worth required by Section 6.13 of the Credit Agreement
and the minimum Net Income required by Section 6.14 of the Credit Agreement, all
of which constitute Defaults under the terms of the Credit Agreement
(collectively, the "Current Defaults"). Lender, although under no obligation to
do so, hereby waives the Current Defaults subject to the satisfaction by Cragar
of all of the terms and conditions set forth in this Amendment. Nothing herein
shall be construed as a waiver by Lender of any existing default under the terms
of the Credit Agreement other than the Current Defaults. Nothing herein shall be
construed as obligating Lender to waive any future defaults under the Credit
Agreement including any future defaults under Sections 6.12, 6.13, and 6.14 of
the Credit Agreement.
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3. The Credit Agreement is hereby amended as follows:
(a) There are hereby added to Section 1.1(b) of the Credit
Agreement the following definitions.
"Net Loss" means after tax net loss of the Borrower from
ordinary continuing operations.
"Negative Goodwill" means negative goodwill determined in
accordance with generally accepted accounting principles
consistent with those used in preparing Borrower's most recent
audited financial statements.
(b) The definition of "Adjusted Net Worth" is hereby amended
to read in its entirety as follows:
"Adjusted Net Worth" means net worth determined in accordance
with generally accepted accounting principles consistent with
those used in preparing Borrower's most recent audited
financial statements plus Negative Goodwill and Subordinated
Indebtedness other than the Bridge Loan.
(c) Section 6.12 of the Credit Agreement is hereby amended to
read in its entirety as follow":
6. 12 Debt Service Coverage Ratio. The Borrower agrees, that
for each fiscal quarter, beginning with the fiscal quarter
ending March 31, 1997, it shall maintain an average minimum
Debt Service Coverage Ratio of not less than 1.2 to 1. For the
fiscal quarter ending March 31, 1997, said ratio shall be
based upon the immediately preceding three month period. For
the fiscal quarter ending June 30, 1997, said ratio shell be
based upon the immediately preceding six month period. For the
fiscal quarter ending September 30, 1997, said ratio shall be
based upon the immediately preceding nine month period. For
each fiscal quarter thereafter, said ratio shall be based upon
the immediately preceding twelve month period. The Debt
Service Coverage Ratio shall be calculated according to the
following formula:
(Funds from Operations + Interest Expense
- Unfinanced Portion of Capital Expense)
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Current Maturities Long Term Debt + Interest Expense
In making the foregoing calculation Interest expenses shall
not include any interest on Subordinated Indebtedness, the
payment of which is accrued but deferred under the terms of a
subordination agreement between the holder of such debt and
Lender in
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accordance with the provisions of Section 7.19 until such
interest is actually paid.
(d) Section 6.13 of the Credit Agreement is hereby amended to
read in its entirety as follows:
6.13 Adjusted Net Worth. The Borrower's book Adjusted Net
Worth shall not decrease by more than $250,000.00 for the
fiscal quarter ending December 31, 1996 as measured against
the Borrower's book Adjusted Net Worth for the fiscal quarter
ended September 30, 1996. The Borrower will at all times from
and after December 31, 1996, maintain a minimum book Adjusted
Net Worth of $2,448,000.00 as of the last day of each calendar
month. Thereafter, so long as this Agreement remains in
effect, such minimum book Adjusted Net Worth shall be
increased as of the end of each fiscal quarter over the
previous fiscal quarter's minimum book Adjusted Net Worth, as
follows:
(a) for the first quarter of each year $125,000.00;
(b) for the second quarter of each year $150,000.00;
(c) for the third quarter of each year $75,000.00;
and
(d) for the fourth quarter of each year $50,000.00.
Adjusted Net Worth decreases for any one calendar month will
be permitted so long as the Adjusted Net Worth minimums set
forth herein are achieved.
(e) Section 6.14 of the Credit Agreement is hereby
amended to read in its entirety as follows:
6.14 Net Income. Borrower will, as of last day of each fiscal
quarter beginning with the quarter ending December 31, 1996,
achieve a minimum Net Income (or in the event a Net Loss is
allowed for such fiscal quarter, a maximum Net Loss) as
follows:
(a) as of December 31, 1996, for the preceding fiscal
quarter, a cumulative Net Loss of not more than $250,000.00;
(b) as of each March 31 commencing with March 31,
1997, for the preceding fiscal quarter, a cumulative Net
Income of not less than $125,000.00;
(c) as of each June 30 commencing with June 30, 1997,
for the preceding two fiscal quarters, a cumulative Net Income
of not less than $275,000.00;
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(d) as of each September 30 commencing with September
30, 1997, for the preceding three quarters, a cumulative Net
Income of not less than $350,000.00;
(e) as of each December 31 commencing with December
31, 1997, for the preceding four fiscal quarters, a cumulative
Net Income of not less than $400,000.00.
(f) There is hereby added to Exhibit C a new
paragraph to the end of the Section entitled "Subordinated
Indebtedness", which provides as follows:
Indebtedness evidenced by those certain Promissory Notes of
borrower totaling $1,500,000.00 dated June 30, 1996 (the
"Investor Debt").
4. Except as explicitly amended by this Amendment, all of the
terms and conditions of the Credit Agreement shall remain in full force and
effect and shall apply to any advance or letter of credit thereunder
5. The Borrower agrees to pay the Lender a fully earned,
non-refundable fee in the amount of $7,500.00 in consideration of the execution
by the Lender of this Amendment. Said fee shall be due and payable January 1,
1997.
6. This Amendment shall be effective upon receipt by the Lender
of an executed original hereof, together with each of the following, each in
substance and form acceptable to the Lender in its sole discretion:
(a) The Acknowledgment and Agreement of Hartzmark set forth at
the end of this Amendment, duly executed by Hartzmark.
(b) Certificate of the Secretary of the Borrower certifying as
to (i) the resolutions of the board of directors of the Borrower approving the
execution and delivery of this Amendment, (ii) the fact that the Articles of
Incorporation and Bylaws of the Borrower, which were certified and delivered to
the Lender pursuant to the Certificate of the Borrower's Secretary dated as of
April 14, 1995 in connection with the execution and delivery of the Credit
Agreement continue in full force and effect and have not been amended or
otherwise modified except as set forth in the Certificate to be delivered, and
(iii) certifying that the officers and agents of the Borrower who have been
certified to the Lender, pursuant to the Certificate of the Borrower's Secretary
dated as of April 14, 1995, as being authorized to sign and to act on behalf of
the Borrower continue to be so authorized or setting forth the sample signatures
of each of the officers and agents of the Borrower authorized to execute and
deliver this Amendment and all other documents, agreements and certificates on
behalf of the Borrower.
(c) Opinion of the Borrower's counsel as to the matters set
forth in paragraphs 7(a) and (b) hereof and as to such other matters as the
Lender shall require.
7. The Borrower hereby represents and warrants to the Lender as
follows:
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(a) The Borrower has all requisite power and authority to
execute this Amendment and to perform all of its obligations hereunder, and this
Amendment has been duly executed and delivered by the Borrower and constitutes
the legal, valid and binding obligation of the Borrower, enforceable in
accordance with its terms.
(b) The execution, delivery and performance by the Borrower of
this Amendment have been duly authorized by all necessary corporate action and
do not (i) require any authorization, consent or approval by any governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, (ii) violate any provision of any law, rule or regulation or of any
order, writ, injunction or decree presently in effect, having applicability to
the Borrower, or the articles of incorporation or bylaws of the Borrower, or
(iii) result in a breach of or constitute a default under any indenture or loan
or credit agreement or any other agreement, lease or instrument to which the
Borrower is a party or by which it or its properties may be bound or affected.
(c) All of the representations and warranties contained in
Article 5 of the Credit Agreement are correct on and as of the date hereof as
though made on and as of such date, except to the extent that such
representations and warranties relate solely to an earlier date.
8. All references in the Credit Agreement to "this Agreement"
shall be deemed to refer to the Credit Agreement as amended hereby; and any and
all references in the Security Documents to the Credit Agreement shall be deemed
to refer to the Credit Agreement as amended hereby.
9. Except as noted in Paragraph 2 above, the execution of this
Amendment and acceptance of any documents related hereto shall not be deemed to
be a waiver of any Default or Event of Default under the Credit Agreement or
breach, default or event of default under any Security Document or other
document held by the Lender, whether or not known to the Lender and whether or
not existing on the date of this Amendment.
10. The Borrower hereby absolutely and unconditionally releases
and forever discharges the Lender, and any and all participants, parent
corporations, subsidiary corporations, affiliated corporations, insurers,
indemnitors, successors and assigns thereof, together with all of the present
and former directors, officers, agents and employees of any of the foregoing,
from any and all claims, demands or causes of action of any kind, nature or
description, whether arising in law or equity or upon contract or tort or under
any state or federal law or otherwise, which the Borrower has had, now has or
has made claim to have against any such person for or by reason of any act,
omission, matter, cause or thing whatsoever arising from the beginning of time
to and including the date of this Amendment, whether such claims, demands and
causes of action are matured or unmatured or known or unknown.
11. The Borrower hereby reaffirms its agreement under the Credit
Agreement to pay or reimburse the Lender on demand for all costs and expenses
incurred by the Lender in connection with the Credit Agreement, the Security
Documents and all other documents contemplated thereby, including without
limitation all reasonable fees and disbursements of legal counsel. Without
limiting the generality of the foregoing, the Borrower specifically agrees to
pay all fees and disbursements of counsel to the Lender for the services
performed by such counsel in connection with the
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preparation of this Amendment and the documents and instruments incidental
hereto. The Borrower hereby agrees that the Lender may, at any time or from time
to time in its sole discretion and without further authorization by the
Borrower, make a loan to the Borrower under the Credit Agreement, or apply the
proceeds of any loan, for the purpose of paying any such fees, disbursements,
costs and expenses and the fee required under paragraph 5 hereof.
12. This Amendment and the Acknowledgment and Agreement of
Hartzmark may be executed in any number of counterparts, each of which when so
executed and delivered shall be deemed an original and all of which
counterparts, taken together, shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
CRAGAR INDUSTRIES, INC., a Delaware corporation
By /s/ Xxxxxxx X. Xxxxxxxxx
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Its /s/ Pres / CEO
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NORWEST BUSINESS CREDIT, INC., a Minnesota
corporation
By /s/ Xxxxx Xxxxx Xxxxx
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Its /s/ Vice President
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ACKNOWLEDGMENT AND AGREEMENT OF HARTZMARK
The undersigned, Xxxxxxx X. Xxxxxxxxx, having entered into that certain
Support Agreement dated as of April 14, 1995, with Cragar Industries, Inc. (the
'Borrower") and Norwest Business Credit, Inc. (the "Lender"), hereby (i)
acknowledges receipt of the foregoing Amendment; (ii) consents to the terms and
execution thereof; (iii) reaffirms his obligations to the Lender pursuant to the
terms of said Support Agreement; and (iv) acknowledges that the Lender may
amend, restate, extend, renew or otherwise modify the Credit Agreement and any
indebtedness or agreement of the Borrower, or enter into any agreement or extend
additional or other credit accommodations, without notifying or obtaining the
consent of the undersigned and without impairing the obligations of the
undersigned under said Support Agreement.
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
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