EXHIBIT 10.105
EXECUTION COPY
WAIVER AND FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENTS
Reference is made to the Securities Purchase Agreements dated as of December 23,
1998 (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 the 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 four consecutive fiscal quarter periods ending,
respectively, on March 31, 2000, June 30, 2000, September 30, 2000, and
December 31, 2000 with the minimum amount figures set forth below:
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Period of Four Consecutive
Fiscal Quarters Ending Minimum Amount
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March 31, 2000 $18,270,000
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June 30, 2000 $18,990,000
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September 30, 2000 $20,250,000
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December 31, 2000 $23,670,000
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2. Section 14.7(b)(ii) of the SPA is amended by replacing the minimum
ratios for the four consecutive fiscal quarter periods ending,
respectively, on March 31, 2000, June 30, 2000, September 30, 2000, and
December 31, 2000 with the minimum ratios set forth below:
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Period of Four Consecutive
Fiscal Quarters Ending Minimum Ratio
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March 31, 2000 0.90 to 1.00
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June 30, 2000 1.00 to 1.00
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September 30, 2000 1.10 to 1.00
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December 31, 2000 1.55 to 1.00
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3. The definition of "Consolidated EBITDA" in Section 15.1 of the SPA is
amended by inserting, immediately prior to the period at the end of the
defined term that includes the definition of "Consolidated EBITDA" the
following:
"provided further, that in determining Consolidated EBITDA,
the Companies will be permitted to add back during the
'Permitted Testing Periods' (as defined below), the
'Restructuring Charges' as defined on the attached Schedule
II, up to an aggregate amount of $4,100,000 for costs incurred
from the period beginning January 1, 2000 through December 31,
2001. The term `Permitted Testing Periods' shall mean the four
fiscal quarters of the Companies beginning with and including
the fiscal quarter in which the actual Restructuring Charge is
incurred and ending with and including the next three fiscal
quarters thereafter."
4. The Events of Default currently existing under Section 14.7(a)(ii) and
Section 14.7(b)(ii) of the SPA are hereby waived.
5. The effectiveness of this Waiver and First Amendment is expressly
subject to the following conditions:
(a) The Companies shall have executed and delivered this Waiver
and First Amendment to the Holders;
(b) All proceedings taken in connection with the transactions
contemplated by this Waiver and First Amendment and all
documents, instruments and other legal matters incident
thereto shall be satisfactory to the Holders;
(c) No Default or Event of Default other than the Events of
Default waived hereby shall have occurred and be continuing;
(d) The accuracy of the representations and warranties set forth
in Section 7 below;
(e) The Companies shall have paid an amendment fee in the amount
of $50,000, such fee to be paid pro rata to the Holders; and
(f) 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.
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7. To induce the Holders to enter into this Waiver and First Amendment,
the Companies represent and warrant to the Holders that the execution,
delivery, and performance of this Waiver and First Amendment has been
duly authorized by all requisite corporate action on the part of each
of the Companies and that this Waiver and First 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 January 28, 2000.
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
------------------------------------ ----------------------------------------
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 X. Xxxxxx
------------------------------------ ----------------------------------------
By: Xxxxxxx X. Xxxxxx By: Xxxxxxx X. Xxxxxx
Its: Managing Director Its: Managing Director
NATIONAL CITY VENTURE GREAT LAKES CAPITAL
CORPORATION INVESTMENTS I, L.L.C.
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------ ----------------------------------------
By: Xxxxxxx X. Xxxxxxxx By: Xxxxxxx X. Xxxxxxxx
Its: Managing Director Its: Member
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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
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