Exhibit 10.63
SECOND 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, the Company and the Holders are desirous of amending the SPA and
granting certain consents 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. Sections 14.7 (a)(ii) of the SPA is amended by replacing the dollar
limits for the four consecutive fiscal quarter periods ending December
31, 2000 with the minimum amount figure set forth below:
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Period of Four
Consecutive Fiscal Minimum Amount
Quarters Ending
----------------------------- --------------------------
December 31, 2000 $19,865,700
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2. Sections 14.7 (b) (ii) of the SPA is amended by replacing the minimum
ratio for the four consecutive fiscal quarter periods ending December 31,
2000 with the minimum ratio set forth below:
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Period of Four
Consecutive Fiscal Minimum Ratio
Quarters Ending
----------------------------- --------------------------
December 31, 2000 1.25 to 1.00
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3. The Companies and the Holders acknowledge and agree that the entering
into by the Companies of the Capital Call Agreement (as used herein,
"Capital Call Agreement" shall mean the Capital Call Agreement dated as
of November 14, 2000 between, among others, Xxxxxx Financial, Inc.,
Harvest Partners III, L.P., and Xxxx International Holdings, Inc., as
originally executed by the parties thereto, and shall not include any
amendments or modifications thereto), the performance of their
obligations thereunder and the consummation of the Proposed Transaction
(as such term is defined in the Capital Call Agreement) shall not cause a
default under Sections 14.15 and 14.17 of the Securities Purchase
Agreements.
4. The Companies and the Holders agree that the equity securities issued
pursuant to the Capital Call Agreement may be repurchased or redeemed by
the Companies without violation of Section 14.6 so long as:
(a) such redemption or repurchase is permitted under the Senior
Loan Agreement;
(b) after giving effect to such redemption or repurchase, no
Default or Event of default would exist under the
Securities Purchase Agreements;
(c) the Minimum Consolidated EBITDA for the preceding four
fiscal quarters is not less than $22,000,000 and
(d) The Companies shall have satisfied the conditions set forth
in Section 2(f) of the Capital Call Agreements.
5. The effectiveness of this Second Amendment is expressly subject to the
following conditions:
(a) The Companies shall have executed and delivered this Second
Amendment to the Holders;
(b) All proceedings taken in connection with the transactions
contemplated by this Second 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 7 Below; and
(e) The Senior Loan Agreement shall have been amended in a
manner satisfactory to the Holders.
6. 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.
7. To induce the Holders to enter into this Second Amendment, the Companies
represent and warrant to the Holders that the execution, delivery, and
performance of this Second Amendment has been duly authorized by all
requisite corporate action on the part of each of the Companies and that
this Second Amendment has been duly executed and delivered by the
Companies.
8. Except as expressly modified herein, the terms and conditions of the SPA
are hereby ratified, confirmed and approved in all respects.
9. This document shall be dated as of November 14 , 2000.
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ACCEPTED AND AGREED TO:
MASSACHUSETTS MUTUAL LIFE MASSMUTUAL CORPORATE VALUE
INSURANCE COMPANY PARTNERS LIMITED
By: Xxxxx X. Xxxxxx & Company Inc. By: Xxxxx X. Xxxxxx & Company Inc.
as Investment Adviser Under delegated authority From
Massachusetts Mutual Life Insurance
Company, as Investment Manager
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
------------------------------------- ---------------------------------
By: Xxxxxxx X. Xxxxxxx By: Xxxxxxx X. Xxxxxxx
Its: Managing Director Its: Managing Director
MASSMUTUAL CORPORATE MASSMUTUAL PARTICIPATION
INVESTORS INVESTORS
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
------------------------------------- ---------------------------------
By: Xxxxxxx X. Xxxxxxx By: Xxxxxxx X. Xxxxxxx
Its: Managing Director Its: Managing Director
The foregoing is executed on behalf of The foregoing is executed on behalf of
MassMutual Corporate Investors, organized MassMutual Participation Investors,
Under 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
officers, employees or agents of such Trust, of the Trustees, shareholders, officers,
but the Trust's property only shall be bound. Employees or agents of such Trust
individually, but the Trust's assets and
property only shall be bound.
NATIONAL CITY VENTURE GREAT LAKES CAPITAL
CORPORATION INVESTMENT I, L.L.C.
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------- --------------------------------
By: Xxxxxxx X. Xxxxxxxx By: Xxxxxxx X. Xxxxxxxx
Its: President Its: President
XXXX INDUSTRIAL HOLDINGS, INC. XXXX INDUSTRIES, INCORPORATED
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxxxx
------------------------------------ ----------------------------------
By: Xxxxxx X. Xxxxxxxx By: Xxxxxx X. Xxxxxxxx
Its: Chief Financial Officer Its: Chief Financial Officer
DFM CORP. AUTO VENTSHADE COMPANY
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxxxx
---------------------------------- ----------------------------------
By: Xxxxxx X. Xxxxxxxx By: Xxxxxx X. Xxxxxxxx
Its: Chief Financial Officer Its: Chief Financial Officer
DEFLECTA-SHIELD CORPORATION SMITTYBILT, INC.
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxxxx
------------------------------------- -----------------------------------
By: Xxxxxx X. Xxxxxxxx By: Xxxxxx X. Xxxxxxxx
Its: Chief Financial Officer Its: Chief Financial Officer
XXXXXXX AUTOTRON CORP.
/s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
By: Xxxxxx X. Xxxxxxxx
Its: Chief Financial Officer
